Specialty tag(s): Divorce
Jonathan James | July 3, 2025
Those facing the end of a marriage are often eager to get a head start on the next chapter of their lives. While being proactive about your life post-divorce is always advisable, it’s important not to get too far ahead of yourself, especially where housing is concerned. Purchasing and moving into a new home may sound appealing, but buying a house before the divorce is finalized can cause significant issues moving forward. However, if you are certain about buying a house while divorcing, there are steps you can take to make the process go more smoothly.
In many divorce cases, there may be injunctions in place preventing either divorcing spouse from buying or selling property during the divorce without an agreement of the parties or permission from the Court. However, even if you are not under an injunction preventing a purchase, whether buying a house during a divorce is possible and whether it is advisable are two different questions with different answers.
The desire to buy a new home during a divorce is an understandable one, but in community property states, like Texas, any property acquired during the marriage is considered community property subject to division in the final divorce. This means that even if you use your own income to purchase a new house, your spouse may still be able to claim partial ownership of the home if the divorce is ongoing. This makes timing, documentation, and legal strategy essential if you plan on buying a house before the divorce is final.
The biggest issue is likely to be how buying a home during a divorce can complicate the division of property. If the divorce is ongoing, the court may need to consider your new purchase when determining a fair distribution of community property. This could delay the process of property division or introduce disputes over who paid for what, who holds the title, or how much equity exists.
The divorce itself can also cause issues while you’re buying the home. Finalizing a mortgage typically requires financial disclosures, and if your financial situation is changing as a result of the divorce due to pending divorce terms like spousal support or child support, you may face challenges qualifying for a loan or getting favorable terms.
If you’ve decided to move forward with buying a home before your divorce is finalized, it’s essential to proceed with caution and a well-informed plan. While it is legally possible, navigating this process requires careful coordination with your legal counsel and a clear understanding of how Texas community property laws may impact your purchase.
Here are some key steps to take:
Before making any financial moves, consult your Texas family law attorney about your plans. An experienced Texas divorce lawyer can help you assess potential complications or restrictions and advise you on the best course of action. In some cases, the court may issue standing orders that restrict major financial decisions, including home purchases.
If you do move forward with buying a house during a separation or divorce, make sure the funds used for the down payment and mortgage are clearly separate property. This means using money that is undeniably yours, such as an inheritance received before the marriage. Remember, income received by you during the divorce case is still considered community property in Texas.
Even if you’re still legally married, you should not include your spouse’s name on the title or mortgage unless there is a legal or financial reason to do so. Titling the property in both names can complicate the division of assets and may unintentionally give your spouse a claim to the new home.
Failing to disclose the new property could raise red flags and lead to legal consequences during your divorce. Make sure your attorney is aware of the transaction so it can be properly addressed in your filings or negotiations.
Consider having your spouse sign a partition agreement. This legal document stipulates that the new home purchased is your separate property and not subject to the division of the community estate in a divorce. It’s especially helpful in states like Texas, where community property laws can create a presumption of community property. A partition agreement offers added peace of mind and can help prevent future disputes over ownership, especially if the home is purchased close to the finalization of the divorce.
Buying a home during divorce is as much a legal decision as it is a financial one. At Goranson Bain Ausley, we understand the challenges that come with divorce and major life transitions. We’re here to guide you through every legal consideration, protect your interests, and help you move forward on solid footing. Contact us today to schedule a consultation.
Our attorneys are experienced in all aspects of family law and will guide you through each step of the process, ensuring you have the information you need to make wise decisions and prepare for the future.
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