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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 dinner- but you probably shouldn’t. These are just a few of the many, 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 there are actions that you could take 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 a lot of moving pieces associated with your divorce and purchasing a home adds to the already complicating proceedings that are ongoing. 

However, in the event that you are considering 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, when it comes to dividing up property in a divorce, Texas is a community property state. That means for as long as you are married, most every purchase that you make is going to 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 in 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 you are divorced by the court. 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 at the conclusion of the case. You can avoid this situation by waiting until your divorce is over with before purchasing a house. You will make your life much simpler by doing so and can avoid problems within the divorce as well. 

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 basically 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 common 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. Basically, all of the things that you need to spend money on 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 certain decisions for yourself but in many regards the court gets to tell you what you can and what you cannot do. 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 he or she does not approve of your buying the house it will not be able to 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 important 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 the course of 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 home. This could mean that you are at a huge 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 in some way. Keep in mind that the title company who 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 that you are interested in considering that you are in the middle of a divorce.

Another factor to consider is that if you are applying for a mortgage your credit history, earnings history and employment history will all be scrutinized. The other thing that you need to keep in mind is that since you are married any mortgage lender will likely want to perform a check on your spouse’s credit as well. 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 are wanting to sell a house in order to use its equity to purchase a new house the title company will need to follow community property laws in order 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 with in your divorce

You and your attorney may have game-planned for what property you are likely to end up with in your divorce. This is a fine thing to do. However, you should also plan on things that could occur within your divorce that cause things to go a little out of whack. Do not assume that you will end up with certain property in a divorce. It could be that you wind up with less in the way of assets and more in the way of debt than you had planned on. If you spent money on a 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 end result. 

Your divorce represents a chance for you to be able to start fresh with little in the way of debt or things tying you down to a certain 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 that you are awarded in the divorce. If your money is tied up in a house then you will not be able to do so as easily. 

Your spouse and/or the judge has 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 making the decision 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 the new house that requires a payment that is slightly more than you anticipated. Now assume with me that you are ordered to pay child support that was slightly more than you anticipated, also. The costs associated with your divorce are now mounting along with the costs of purchasing your new home. Don’t put yourself in a position where you are paying 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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