Huffman Family Law FAQ
Q:My spouse and I are getting a divorce. Can I change the locks on our home?
A:That probably isn’t a good idea even if you have not gone to court yet or even filed your divorce. In most situations, a court in Harris County will not allow you to lock your spouse out from your home without an order that grants you permission to do so. You may be able to get an order granting you permission to do so in a Temporary Order or a Protective Order. When your spouse is ordered to vacate the house then you may change the locks once your spouse has had an opportunity to retrieve whatever personal items, he or she needs to live on a day-to-day basis.
Q:What is going to happen with the house after your divorce?
A:The fate of your family home will depend upon the circumstances of you case. There are only a few options to choose from when it comes to the family home in a divorce: 1) it can be sold and the proceeds split between you and your spouse after paying off the loan(s), 2) you can become the sole owner of your home or 3) your spouse can become the sole owner of the home. However, if the house is classified as your or your spouse’s separate property the best the non-owner spouse can probably do is to ask for reimbursement for any community funds that went into upkeep or mortgage payments on the home.
Q:You just used a term – community property. What is that?
A:Community property is the legal theory of how marital property is treated in a Texas divorce. All property is presumed to be community property at the beginning of a divorce. Ultimately it is property acquired during your marriage that is classified as community property. Otherwise, property acquired by either spouse prior to the marriage is classified as separate property. Determining what is and what is not community property is important in a divorce because community property can be divided up between the two of you.
Q:Are there exceptions to the rule about property acquired during the marriage counting as community property?
A:As we just talked about how most property acquired during the marriage is community property. However, there are some exceptions to this rule. For one, if you inherit property during your marriage then that property is separate property. Next, if a gift is made specifically to you during the marriage, then that property is likewise considered to be your separate property. You will need to prove how you acquired the property to prove your assertion that a particular piece of property is separate rather than community property.
Q:Are debts divided up in divorce, as well?
A:Yes. Debts in a Texas divorce are treated just like assets or property are. Debts acquired during your marriage are divided between you and your spouse just like property would be. By the same token, debts acquired prior to your marriage are separately held and cannot be divided up by a family court judge. The topic of debt division in a divorce is more complicated than we have space to discuss here. Please look through our blog or schedule a free of charge consultation with one of our licensed family law attorneys to receive more in-depth answers regarding this subject.