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Can you buy a house during your divorce?

There are a lot of things in life that you can do but probably shouldn’t. You could jump off a bridge- but probably shouldn’t. You could eat a jar of jalapenos for dinner- but you probably shouldn’t. You could try to hand-feed an alligator its spread- but you probably shouldn’t. These are just a few of the many things that you could try to do in life but probably would be better served not attempting to partake in.

Divorces are just like any other area of life in this regard. Within the world of your divorce, you could take action but probably would be better served not doing. One of those things that you could do but shouldn’t is to buy a house during your Texas divorce. There are many moving pieces associated with your divorce, and purchasing a home adds to the already complicating ongoing proceedings.

However, if you consider taking the next step and purchasing a home during your divorce, the Law Office of Bryan Fagan would like to provide you with some information on what doing so could mean for your case. If you have any questions associated with this subject or any other related to divorce, please do not hesitate to contact the Law Office of Bryan Fagan. Our attorneys will be happy to sit down with you and walk through any problems you are experiencing with you in a free-of-charge consultation.

Remember that Texas is a community property state.

We talk a lot on this blog about how Texas is a community property state when it comes to dividing up property in a divorce. That means for as long as you are married, almost every purchase you make will be considered owned both by you and your spouse. There are some exceptions to this rule, but for the most part, if you dip into your checking account and put down a payment for a home, take out a loan and begin to make payments on it, that entire transaction represents community property transactions.

I know that it may feel like you and your spouse are divorced from the moment that you separate from one another. It may feel even more permanent when you or he files for divorce officially. You may have started making plans for your post-divorce life- even started dipping your foot in the dating pool, again. This may be the best you have felt in a long time. You may feel free to do what you want when you want.

A word of caution from an attorney who practices family law: there is no such thing as a legal separation in Texas. You may have friends who have talked to you about separating from your spouse. You may have relatives in other states who have spoken to you about legally separating from him. These folks may be well-intentioned, but they are not correct on how the law treats this situation in Texas.

There is no legal separation in this state. You are not spending your own money on a home when you purchase one before the court divorces you. The decisions you make can impact how your community estate is divided in the divorce. The money you are spending on a home that is supposed to be for you after the divorce will now need to be a part of the community estate division that occurs after the case. You can avoid this situation by waiting until your divorce is over before purchasing a house. You will make your life much simpler by doing so and prevent problems within the divorce.

Temporary Orders will likely bar you from purchasing a house during the divorce.

Depending on what county you have filed for divorce in, there will either be standing orders implemented at the beginning of your divorce or temporary orders that will be enacted by agreement or court order. These orders force you and your spouse to play nice in the sandbox with one another for the duration of your divorce. Your behavior will be kept in check as far as what you can do with your money, when you can see your children, and how you can handle finances associated with your household.

One standard temporary/standing order is that you can only use community income for necessities during the divorce. Attorney’s fees, medical care, food, clothing, household bills, and the like are all considered to be necessities. You need to spend money on all of the things that keep your household going during the divorce. If something is extravagant or unnecessary, the odds are good that you cannot purchase it. Buying a new house is something that I think we can safely say is likely not necessary during a divorce.

Your life is out of your control during a divorce. You can make confident decisions for yourself, but the court gets to tell you what you can and what you cannot do in many regards. This is only temporary to a large extent, but big purchases are one of those things that you cannot do during a divorce. When you start the process to buy a house, it will need to involve the judge. If they disapprove of your buying the home, it will not happen.

Don’t put your share of the community property division in jeopardy.

If you don’t have children, the property division in your divorce will be the most crucial part of your case. How the community estate is divided can impact your case for years to come. Remember that it is presumed that any property purchased during your marriage is considered to be community property. Thus, that property is subject to division in your divorce. How it is divided can be determined either by you and your spouse or by the judge in a trial.

Most divorces see the parties themselves dividing up the community estate. You can either do this between yourselves in mediation, or a judge can do it for you if a settlement cannot be reached. Keep in mind that while the house you purchase is an asset, there is likely going to be a great deal of debt associated with the purchase as well. Your spouse may be eligible for a reimbursement claim on the purchase of the home but would likely not be liable for any of the debt on the house. This could mean that you are at a vast disadvantage associated with the community property division.

Purchasing a home during your divorce means that your spouse will be involved.

As long as you and your spouse are still legally married, any purchase of a home will involve your spouse somehow. Keep in mind that the title company that insures the title to the home will likely not do so unless your spouse’s name appears on the title/deed of trust to the home. This is probably not something you are interested in, considering that you are in the middle of a divorce.

Another factor to consider is that your credit history, earnings history, and employment history will all be scrutinized if you are applying for a mortgage. The other thing that you need to keep in mind is that since you are married, any mortgage lender will likely want to check your spouse’s credit. Their poor credit score could prevent you from taking out a loan in the first place- which wouldn’t be the worst thing in the world.

If you want to sell a house to use its equity to purchase a new home, the title company will need to follow community property laws to complete the closing on the sale of your former residence. It can get complicated even if that residence is your separate property. The hoops that you will have to jump through and the level of involvement from your spouse will likely make the purchase of a home during your divorce not worth the effort.

Do not make assumptions about what property you will end up within your divorce.

You and your attorney may have game-planned for what property you are likely to end up within your divorce. This is a fine thing to do. However, it would help if you also planned on something that could occur within your divorce that causes things to go a little out of whack. Do not assume that you will end up with specific property in a divorce. It could be that you wind up with less in the way of assets and more in the form of debt than you had planned on. If you spent money on the house, assuming that you would be able to make up for the purchase in the division of your community estate, then you may be disappointed in the result.

Your divorce represents a chance for you to start fresh with little in the way of debt or things tying you down to a specific area of the city or state. What if you get a great job opportunity after the divorce? If you purchase a house, that may prevent you from taking advantage of that opportunity. Another issue is that you may want to have some money in your pocket to pay down debt awarded in the divorce. If your money is tied up in a house, you will not do so quickly.

Your spouse and the judge have no reason to award you a division of your community estate that is directly in line with what you want it to be. Nobody is going to feel sorry for you because you purchased a home and now need money to pay for the monthly payment or any other cost associated with moving into a new home. Do not presume that your spouse will work with you in the property division portion of your case. That is a dangerous presumption for you to make.

Consider all of your circumstances before deciding to purchase a home.

Again, it is not impossible to buy a house during your divorce. It can prove tricky and can end up being burdensome on you and your spouse. Consider what could happen to you if you get a mortgage on a new house that requires slightly more payment than you anticipated. Now assume that you are ordered to pay child support that was somewhat more than you expected. The costs associated with your divorce are directly mounting along with the costs of purchasing your new home. Don’t put yourself in a position where you pay upwards of 20-30% of your net monthly income in child support and another 25% towards a mortgage.

Be sure to speak to your attorney before you take any steps to purchase a home during your divorce. Your attorney can help you walk through that decision in a more logical and step-by-step manner than you are likely willing to engage in yourself. We all tend to get “house fever” when we start to look for a new place to live. The excitement of searching the internet for great homes and great deals can be intoxicating. Don’t allow that excitement to put you into a position that you regret years down the road.

Questions about divorce in Texas? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we discussed today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and address your concerns directly in a comfortable, pressure-free environment.

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