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Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 36983
Experience:  Texas Attorney for 30 years dealing in real estate
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Can separate property be protected when used to make the

Customer Question

Can separate property be protected when used to make the down payment on a house where community funds will be used to make the mortgage payment. The mortgage will be in both names.
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: Harris county , Houston Texas.
JA: Has anything been filed or reported?
Customer: Not yet.
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 29 days ago.
Category: Real Estate Law
Expert:  Ray replied 29 days ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

Expert:  Ray replied 29 days ago.

If you want this to remain separate here the spouse has to sign a note for the amount you are contributing.It can be an unsecured note.Otherwise it is commingled and likely you do not get your money back in a a divorce.You can have spouse sign note for the amount you contributed and have note indicate this is separate property.The other option is a post nup agreement to divide all the assets and reimburse you.

Under Texas law these are the options to protect the separate funds and recover them in a divorce--either a promissory note from the spouse or a post nup agreement.

I appreciate teh chance to help you today.Please let me know if you have more follow up.

Customer: replied 29 days ago.
Do you have a note template for us to use. Thx.
Expert:  Ray replied 29 days ago.

PROMISSORY NOTE

$________(AMOUNT) __________________(DATE)

FORVALUE RECEIVED, the undersigned, (the "Maker"), hereby promises topay to the order of ____________________ (LENDERNAME) ("Payee"), the principal sum of $ ____________ pursuant to theterms and conditions set forth herein.

PAYMENTOF PRINCIPAL. The principal amountof this Promissory Note (the "Note") and any accrued but unpaid interestshall be due and payable in ____________ (NUMBER OF PAYMENTS) (CIRCLE ONE:equal monthly installments / equal quarterly installments / payments asdescribed below) beginning ___________________ (DATE OF FIRST PAYMENT). All payments under this Note shall be appliedfirst to accrued but unpaid interest, and next to outstanding principal. If not sooner paid, the entire remainingindebtedness (including accrued interest) shall be due and payable on_________________ (DATE OF FINAL PAYMENT).

INTEREST. This Note shall bear interest, compoundedannually, at _________ (ANNUAL INTEREST RATE) percent.

PREPAYMENT. The Maker shall have the right at any timeand from time to time to prepay this Note in whole or in part without premiumor penalty.

REMEDIES. No delay or omission on part of the holder ofthis Note in exercising any right hereunder shall operate as a waiver of anysuch right or of any other right of such holder, nor shall any delay, omissionor waiver on any one occasion be deemed a bar to or waiver of the same or anyother right on any future occasion. Therights and remedies of the Payee shall be cumulative and may be pursued singly,successively, or together, in the sole discretion of the Payee.

EVENTSOF ACCELERATION. The occurrence ofany of the following shall constitute an "Event of Acceleration" byMaker under this Note:

(a) Maker's failure to pay any part of theprincipal or interest as and when due under this Note; or

(b) Maker's becoming insolvent or not payingits debts as they become due.

ACCELERATION. Upon the occurrence of an Event ofAcceleration under this Note, and in addition to any other rights and remediesthat Payee may have, Payee shall have the right, at its sole and exclusiveoption, to declare this Note immediately due and payable.

SUBORDINATION. The Maker's obligations under this PromissoryNote are subordinated to all indebtedness, if any, of Maker, to any unrelatedthird party lender to the extent such indebtedness is outstanding on the dateof this Note and such subordination is required under the loan documentsproviding for such indebtedness.

WAIVERSBY MAKER. All parties to this Noteincluding Maker and any sureties, endorsers, and guarantors hereby waiveprotest, presentment, notice of dishonor, and notice of acceleration ofmaturity and agree to continue to remain bound for the payment of principal,interest and all other sums due under this Note notwithstanding any change orchanges by way of release, surrender, exchange, modification or substitution ofany security for this Note or by way of any extension or extensions of time forthe payment of principal and interest; and all such parties waive all and everykind of notice of such change or changes and agree that the same may be madewithout notice or consent of any of them.

EXPENSES. In the event any payment under this Note isnot paid when due, the Maker agrees to pay, in addition to the principal andinterest hereunder, reasonable attorneys' fees not exceeding a sum equal to 15%of the then outstanding balance owing on the Note, plus all other reasonableexpenses incurred by Payee in exercising any of its rights and remedies upondefault.

GOVERNINGLAW. This Note shall be governed by,and construed in accordance with, the laws of the State of ___________________(STATE NAME).

SUCCESSORS. All of the foregoing is the promise of Makerand shall bind Maker and Maker's successors, heirs and assigns; provided,however, that Maker may not assign any of its rights or delegate any of itsobligations hereunder without the prior written consent of the holder of thisNote.

INWITNESS WHEREOF, Maker has executed this Promissory Note as of the day andyear first above written.

Maker:____________________________ (BORROWER SIGNATURE)

_____________________________ (BORROWER NAME)

Thanks again.

Expert:  Ray replied 29 days ago.

So here you have the note due and payable at the time of divorce or sale of property located at***** Houston, Texas 77074.

Expert:  Ray replied 29 days ago.

If you can positive rate it is much appreciated, thanks again.

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