Often we receive inquiries from married couples about whether their spouse has the legal right to sell the homestead without their knowledge & consent even if the homestead belongs to their spouse prior to marriage (i.e. separate property). The simple answer is, NO. The Texas Family Code § 5.001. clearly states that, “Whether the homestead is the separate property of either spouse or community property, neither spouse may sell, convey, or encumber the homestead without the joinder of the other spouse except as provided in this chapter or by other rules of law.”
Before we discuss the exceptions to the aforementioned rule, let’s try to understand how homestead is defined in Texas. The relationship between homestead and Texas goes back to early 1800s to the times of Stephen F. Austin. However, the legal definition of homestead comes from the Property Code § 41.002 which defines it in terms of urban & rural home and the corresponding area. However, no distinction is made in terms of value of the property. This definition only refers to real property & fixtures and therefore cannot be applied to movable ones which are not considered as the parts of a property. Also, the distinction made between urban & rural is a matter of litigation and thus you require an experienced Family Law attorney to help you with these complex matters.
According to the Texas Family Code § 5.002., given the homestead in question constitutes a separate property of the petitioning spouse, sale of homestead could be initiated if the other spouse is judicially declared incapacitated. This is the first exception to the joinder clause given in the Texas Family Code § 5.001. The same is true even when the homestead is a part of community property (Section 5.003.).
Chapter 5 of the Texas Family Code also mentions certain unusual circumstances that qualify as exceptions to section 5.001. The petitioning spouse could proceed with the sale of homestead irrespective of whether it’s a separate or community property, if the other spouse has: disappeared and the petitioning spouse has no knowledge about his/her whereabouts, permanently abandoned the homestead in question as well as the petitioning spouse, permanently abandoned the homestead in question and the spouses also are permanently separated, or been a prisoner of war or absent from a public service of the Unites States as reported by an executive department of the United States.
Hence, if you are facing any of the problems mentioned above, you must sought legal counsel from a Family Law attorney so that you can properly file the petition keeping in mind the various time frames that must be complied with while filing the petition.
Michael Busby Jr. is a divorce & family law attorney, who practices in Harris and Fort Bend Counties, Texas. He has been in practice for over 14 years and has tried over 300 cases. He is familiar with the policy and procedures of the Harris and Fort Bend County Texas family law courts. Our office is open until 8:30 p.m. on Wednesdays and Saturday from 9 a.m. to 1 p.m. for working folks. Michael Busby Jr. 6100 Corporate Dr Ste 190 Houston, Texas 77036 (713) 974-1151 281-DIVORCE Visit me on the web at www.busby-lee.com