#TEXAS OWELY AGREEMENT CODE#
#TEXAS OWELY AGREEMENT FREE#

#TEXAS OWELY AGREEMENT CODE#

This section of the Texas Family Code provides as follows: Owelty on partition imposed against the entirety of the property by a court order or by a written agreement of the parties to the partition, including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family homestead in a divorce proceeding Ī divorce court also has authority to order the sale of the parties marital homestead, under the Texas Family Code section 7.001 when ordering the “just and right division” of the parties marital estate. While there are eight specific exceptions to the homestead protection from a forced sale, the most relevant one for divorce purposes is known as an “Owelty of Partition” as to where the Texas Constitution sets out this exception to a forced sale of a homestead as follows: The Texas Constitution provides special protections for the martial homestead, which are unique and distinct from other types of properties.Īrticle 16, Section 50 of the Texas Constitution and Section 41.001 of the TExas property code both limit the types of liens that are enforceable against a Texas homestead. (2) according to Texas Family Code Section 7.001Įxception and Authority for Forced Sale of Homestead in Texas in Divorce (1) pursuant to Article 16, Section 50 of the Texas Constitution and This is because under Texas law, there are only two ways that a divorce court may order the forced sale of a marital homestead: Meaning, while a divorce is case pending, under what are known as “ temporary orders” the Court is without power to order a homestead property to be sold unless both parties agree. In divorce, a divorce Court is prohibited from ordering the sale of homestead property unless by agreement of the parties or upon final judgment. It’s important to understand there is a significant difference between a homestead property and non-homestead property. Understanding the Difference Between Marital Homestead and Non-Homestead Properties in Divorce

#TEXAS OWELY AGREEMENT FREE#

However, if the divorce is not finalized for an extended period of time – for whatever reason and there are many reasons this can happen – serious complications can arise.Īccordingly, a decision to sell or purchase real estate while a divorce is pending should only be done after careful consultation with your Evans Family Law Divorce Attorney and (2) only pursuant to either a written agreement signed by the parties or an agreed Order that is signed by the parties and entered by the Court.Ĭontact our Austin Office or Bastrop office today to schedule a free consultation. We have seen situations where the parties in the beginning of a divorce matter are working very amicably, collaboratively, and they agree to sell real property by agreement and go ahead and divide those sales proceeds between them. And, it is strongly advised to do so only (1) after serious consideration of the entire marital estate and how the sale of such property and allocating those proceeds prior to the divorce becoming final may affect the overall marital estate. If you are considering purchasing or selling real estate during a divorce, you should only do so after consulting with your divorce attorney on the best course of action. Doing so can create significant complexities not inherently obvious to a party and create a world of unintended consequences, especially when there are minor children involved. However, while there are typically many obvious reasons to want to and consider selling real property during a pending divorce, there are equally just as many reasons this may not be a sound strategy. And, most recently with the significant increase in the real estate market in the Austin, Texas area, many parties come to divorce initially asking about being able to sell their homestead because parties often need the cash to pay debts, credit cards, move into their own new residence following separation, or pay Attorneys fees or the costs of the divorce litigation itself. While not all, many divorces involve real real property and some involve more than one such as a vacation home or rental properties, but most involve just one being the parties marital homestead.

Texas owely agreement