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A divorced mom pays the mortgage on and lives in a house, but the house title is in both parents' names. The father is gone. The mom wants to move, but can't sell the house.

How can the mom get the house title in her name without the father signing in Texas?

1 Answer 1

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Short Answer

Usually, a divorce decree doesn't leave former spouses as co-owners of the former marital residence, but sometimes this happens anyway.

To oversimplify, if the divorce decree leaves a couple a co-owners, either of them can usually force the sale of the property and a division of the proceeds left after paying off the mortgage, in a special kind of lawsuit called a partition action.

The rights of mortgage lenders and lienholders against both former spouses cannot be changed without paying off the loan in most cases.

If a spouse who lives there isn't able to pay off the old loan and refinance it in their name alone, this usually means that the house will be sold to a third party with the net proceeds of the sale split.

The net proceeds from the sale of the house are divided in proportion to their ownership interests in the co-owned property that can sometimes be tricky to calculate.

Often the ability of either party to force a sale of the house in a partition action leads the parties to reach a settlement in the shadow of the possible outcome.

Long Answer

Caveats

This answer sets forth the general rules that apply the vast majority of the time. There are some rare and obscure exceptions to these rules that can apply buried in dark corners of Texas law, and this answer doesn't not comprehensively ferret out every single such exception to the general rules.

This answer also doesn't discuss ways in which outcomes that shouldn't be allowed by these rules can be made possible by one party or another's procedural mistakes in the court system, which is fact specific and can arise in certain situations.

What Is A Divorce Decree?

The only way a divorce case can end is for the divorce to be called off (either by mutual agreement or because one or both of the divorcing spouses die before the case is over), or for a divorce decree to be entered by the court, ending the marriage and establishing the rights of the parties after the divorce with respect to each other and their property.

A divorce decree can be entered either by mutual agreement of the spouses in a divorce case, but if they can't agree, the judge in the divorce case will impose a divorce decree dividing property and handling other issues in the divorce as the divorce judge sees fit consistent with Texas law. Either way, it isn't official until it is signed by the judge.

Sometimes a divorce decree will be very short, but will incorporate by reference one or more other documents like a mutually agreed separation agreement, or a parenting plan, or a schedule of who gets what property in the divorce.

The Role of A Divorce Decree

Almost anything can be done by mutual agreement (although all decisions related to children must be approved by the judge with a finding that the agreement is in the best interests of the children).

A judge has far more limitations on what the judge can do in a divorce decree to establish the post-divorce property rights of the ex-spouses, but the judge still has great discretion in how the judge may make those decisions.

Usually, the ownership of a house is handled in a way that leaves only one spouse owning the house in connection with a divorce proceeding.

For example, ex-husband may be ordered to transfer the house to ex-wife, and ex-wife may be ordered to transfer her pension to ex-husband in exchange, if that is what the divorce decree says.

One of the grounds for appealing a judge's divorce decree decision to a higher court is that the judge didn't adequately separate the spouses financially.

But that doesn't mean that a divorce decree can never leave ex-spouses as co-owners of property.

Once the divorce case is over, if nothing in the divorce decree separates ownership of the house, then the ex-husband and ex-wife have the same rights with respect to each other that a house co-owned by two people who were never married would have (unless the divorce decree states otherwise).

Some divorce decrees, however, prohibit the sale or transfer of the house without the mutual consent of the former husband and former wife (for former husband and former husband, or former wife and former wife, in a same sex marriage), either indefinitely, or for some time period defined in the divorce decree.

In rare cases, the divorcing spouses could agree to do something that leaves neither of them owning their house, like agreeing to sell it, or agreeing to give it to charity, or putting it in the trust for their children.

The Rights Of Unmarried Co-Owners Of Property When A Divorce Decree Doesn't Provide Otherwise

A lawsuit to terminate co-ownership of real estate without the consent of all of the owners of the real estate is called a partition action.

In the case of a house that cannot feasibly be divided in kind the way that, for example, farmland could be, what a partition action does is force the house to be sold, with the proceeds divided.

Conceivably, one spouse or the other could be both one of the two sellers, and one of the buyers at the partition sale if the spouse that is both selling and buying is the highest bidder in a sale that is open to the general public. In this case, the partition sale is functionally equivalent to cashing out the equity of a spouse who is not the highest bidder at a partition sale.

Frequently, given the inevitability of an ultimate partition sale in these cases, the parties will instead reach a mutual agreement to either have one party cash out the other for an agreed valuation of the house and allocation of the equity in the house. Alternatively, another common form of settlement is that the co-owners will agree to sell the house for an agreed price to a third-party and then to divide the net proceeds either according to a pre-agreed formula or in litigation over net proceeds from the agreed sale held in a court controlled bank pending a judicial determination of each spouse's share of the proceeds.

Partition actions aren't the most expensive kind of court case, but usually, at least one of the parties needs to have a lawyer for it to go smoothly and the legal fees aren't usually negligible either.

Critically, the fact that "mom pays mortgage and lives in the house" doesn't matter much in a partition action after the divorce is over.

Paying the mortgage and living in the house are frequently considered to cancel out, rather than changing the share of the equity to which each former spouse is entitled. An ex-wife cannot just get an ex-husband off of the title without being the highest bidder at a partition sale.

If ex-husband is the highest bidder, he will stay on the title and she will be off the title and will have to move out or pay him rent.

If the third-party is the highest bidden, she will have to move out or pay rent to the third-party, and neither of them will be on the title anymore.

The Rights Of Mortgage And Lien Creditors

The fact that both ex-spouses are responsible to the mortgage company (and any lienholders who have rights identical to mortgage companies for the purposes of this question) if they were both on the mortgage before the divorce can't be changed without the mortgage lenders consent (which is almost never given), unless the mortgage is paid off in full and (if necessary) refinanced.

If there is a partition sale, the mortgage debt must be paid off before either spouse gets any of the proceeds from the partition sale.

The Impact of Community Property Laws In Texas

One complicating factor in this analysis is that Texas is a community property state. So, to determine what share of the equity in a house belongs to each spouse (if any) you have to apply community property rules that are deceptively simply, but are quite complicated to apply in practice.

The general rule of community property in Texas is that property acquired before the marriage or by gift or inheritance by a single spouse, or allocated to a spouse in divorce decree, is separate property. All other property of the couple of community property. Any property for which separate property status can't be proven, or for which there is too much co-mingling of community and separate property, is community property. A spouse is entitled to 100% of the that spouse's separate property, and in addition, to 50% of the community property of the couple, upon divorce. Also, at death, a decedent can't leave the surviving spouse's separate property to someone else, can't leave the 50% of the property that is community property immediately prior to death, that is owned by the surviving spouse, to anyone other than the surviving spouse, without the surviving spouse's consent.

Ideally, the divorce decree will spell out what percentage of each piece of land or other property that is owned by each former spouse once they are divorced. But, sometimes a divorce decree entered by mutual agreement, or by a judge, is sloppy and doesn't make that point clear. If the divorce decree doesn't clarify what percentage of the property is owed by each ex-spouse, this has to be cleared up later when the house is sold in a partition action, if there is no mutual agreement to the contrary.

A valid pre-nuptial agreement, or a valid post-nuptial agreement, however, can modify the community property rules of Texas that would otherwise apply.

The application of community property rules is also particularly complicated in cases where the couple spends part of their marriage in Texas, and part of their marriage either in a state that is not a community property state or that has very different community property laws on some key issues.

The Impact Of Post-Divorce Economic Activity Related To The House

Also, the amounts spent by the co-owners of the house after the divorce, and the question of whether one of the co-owner has been excluded from the co-owned house by the other, could change the share of each co-owner in the equity in the house after the divorce. The exact rules for how these adjustments are made are complicated, and are often subject to a judge's discretionary decision about this issue should be resolved in a partition action.

Footnote Re Gender

All of the rules discussed above, even if I haven't worded my explanations that way, are gender neutral. The rules are the same for ex-husbands as they are for ex-wives (and vice versa) in opposite sex marriages, for ex-husbands in same sex marriages, and for ex-wives in same sex marriages.

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