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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.
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.
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.
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