If you are planning to divorce or recently completed a divorce, you may be experiencing stress and anxiety about what happens next and what the future may look like. This can be magnified if you own a home with your spouse and are in the process of making decisions about how the sale of your home will be completed.
Texas is a community property state, meaning that all assets gained (with few exceptions) during the marriage are equally owned by both parties. For the purpose of this article and since I'm not an attorney, I’ll not go into the details of community property laws; your attorney should explain how community property laws will impact your divorce.
It’s important that your attorney finalize all agreements concerning jointly owned property prior to finalizing the divorce, particularly agreements concerning the sale of your home (if you’ve agreed to sell). All parties should have a clear understanding of how the sale of the home will take place and how it will impact them, including how the distribution of proceeds (if any) will be handled. This is why hiring a board certified family law attorney that understands the process of selling real estate can help the sale progress smoothly, and may help prevent costly legal issues that arise from subsequent disputes.
In Texas, requirements for an attorney to become board certified in family law include that in the past five years, the attorney has acted as lead counsel in at least four trials that involved issues of property division. It would seem logical that all attorneys would understand how the sale of a home impacts the divorce proceeding, considering the likelihood they own a home and know the law. However, the sale of a home has very specific laws and considerations attached that must be adhered to in order to achieve a successful and undisputed outcome for all parties. Attorneys that specialize in criminal law or other types of law may lack the experience and knowledge needed to ensure your home is sold without need for additional court appearances.
The Texas Association of Realtors promulgates contract forms that define laws and requirements of the sale of real estate, with both parties agreeing to specific terms that become a part of the purchase agreement (price, closing date, etc.). The purchase contract as written protects both buyer and seller from default that may occur for reasons that are not permitted under the contract. If you become involved in a dispute with your spouse over the terms of the sale after you’ve executed a contract, the buyer(s) have the right to pursue the matter legally if you fail to complete the sale as agreed. This means that you could be held financially responsible for any loss to the buyers resulting from your failure to meet the terms of the contract.
It’s also important that your real estate agent is experienced and understands how the divorce decree impacts the listing and sale of home. There are specific procedures that should be followed in listing a home as part of compliance with a divorce decree. It’s important that all requirements of the decree are met in order to ensure the best possible outcome.
Divorce can be very stressful and the last thing anyone wants to experience is additional legal disputes and fees. To learn more about listing your home in compliance with a divorce decree, email us for a list of services provided.