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xavierjd, Attorney
Category: Legal
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Experience:  20+ yrs in criminal, landlord/tenant, family, & small claims
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Im going through a divorce in Texas (state of residence for

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I'm going through a divorce in Texas (state of residence for both parties). My ex and I are filing pro se. The divorce is amicable, and all community property including the sale of our house is complete, with a complete distribution of the sale proceeds. My divorce is not final but we are in complete agreement with all the terms of the divorce. I am the petitioner, and my ex is the respondent. I want to buy a new principal residence with the proceeds. Depending upon timing, the divorce may not be final by the time escrow closes. Thus far the potential lender is saying that he must be on title of a principal residence because we are not finally divorced, and even though our marital settlement agreement dated last November states we each agree that property purchased after the effective date of the agreement is the sole property of the purchasing individual, and even though the house would be purchased with separate funds (in fact the funds are a result of my share of the proceeds of splitting our joint assets). Is the lender's position accurate?
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Why haven't you finalized the divorce?

Is the person who wishes to purchase the home a man or woman? I am not trying to be funny, but when purchasing property, it may make a difference!

Customer: replied 3 years ago.

I'm the ex-wife, and I'm trying to buy a new principal residence. The delay in finalizing the divorce was trying to sell a large house on almost 25 acres of land in North Texas. My ex was refusing to finalize things until it sold. So, now I'm just looking to get everything finalized, which should take about 60 days. Everything else, including retirement assets, were already agreed upon - I keep mine 100%, he keeps his 100%. He keeps his earnings, I keep mine. His debts are his, my debts are mine, and we each agreed to indemnify and hold harmless the other from any debt collection efforts associated with liabilities incurred after the settlement agreement date.





Has the 25 acre property been sold?

Do you need any of the proceeds from the sale of that property to purchase your new residence?

Customer: replied 3 years ago.

The 25 acre property is sold, and we each have split the proceeds of that sale 50/50 per our marital settlement agreement. The proceeds from that and the sale of other community property that also has been split 50/50 will go toward a new purchase of a new residence.

Hi Kim,

If everything has been sold and you have agreed on a property settlement, then there should be no reason why you can't finalize the divorce. If the divorce has been filed and the statutory time has passed, you can memorialize the agreement. Then, you can go before the judge and have the divorce entered. It shouldn't take long at all to get a court date.


As you are aware, Texas is a "community property" state. Community property is any property acquired by either or both spouses during marriage by other than gift or inheritance. This includes virtually everything purchased during marriage. It is important to remember that a marriage is still a legal marriage-- even after separation: therefore, anything earned, purchased, or even merely contracted for, during your separation (whether before or after the divorce petition has been flied) will be characterized as community property. This is true even if the property is not physically received until after marriage. For example, if the day before the divorce is granted you contact to purchase a new home (with closing set off for one month later), or your husband enters into a contract to purchase a home (with closing set for one month later), this will be characterized as community property.


The presumption that any real estate purchased prior to the divorce is "community property," can be overcome by "clear and convincing" evidence. This is a fairly high burden. However, if you place language in the divorce decree that you entered into a contract to purchase the home PRIOR to the divorce and that you and your husband agree that the property is YOUR separate property, then you should be able to purchase the property.


Moreover, to cover all bases, your husband should also sign a waiver at the time of closing that the home is your SEPARATE property, free and clear of any claim by your husband.


So, the answer to your question is yes. You can purchase the property, SO LONG AS it is clear that the property being purchased is YOUR SEPARATE property and your husband agrees, through the signing of a waiver, that he has no claim to the property. There should also be a paragraph in your divorce decree that awards you the home as your SEPARATE property.


I hope you find this information useful.




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