Selling a House During a Divorce in Texas

Whose name is on the deed is the wrong first question

Most people start here, and it is the wrong place to start. Texas property law asks two separate questions about a house, and only the second one decides who has to sign a deed.

The first question is characterization. Family Code Section 3.001 defines a spouse’s separate property as property owned or claimed before marriage, property acquired during marriage by gift, devise, or descent, and recoveries for personal injuries sustained during marriage other than recovery for loss of earning capacity during marriage. Section 3.002 defines community property as everything else acquired by either spouse during marriage. Section 3.003 then puts a thumb on the scale: property possessed by either spouse during or on dissolution of marriage is presumed to be community property, and the degree of proof needed to establish that property is separate is clear and convincing evidence.

The second question is management and control, which is not the same thing. Section 3.101 gives each spouse sole management, control, and disposition of that spouse’s separate property. Section 3.102(a) gives each spouse sole management of the community property that spouse would have owned if single, including personal earnings, revenue from separate property, personal injury recoveries, and the increase, mutations and revenue from all property subject to that spouse’s sole management. Section 3.102(c) makes the rest of the community property subject to joint management, control, and disposition unless the spouses have agreed otherwise in a written power of attorney or other agreement.

Here is the part that catches people out. Even where the management rules would put a house in one spouse’s hands, the homestead rule sits on top of them. If the house is the homestead, Section 5.001 requires the other spouse to join in the sale anyway. A spouse who is not on the deed at all, and who has no ownership interest to argue about, still has to sign off on a conveyance of the homestead. That is why you should expect a title company to ask for both signatures even when only one name appears in the chain of title.

The homestead rule, and its two incapacity exceptions

Family Code Chapter 5 is short and worth reading in full, because the whole of the problem and most of the solutions are in it.

Section 5.001 is the general rule quoted at the top. Two sections immediately after it create exceptions, and both are narrower than people hope. Section 5.002 says that if the homestead is the separate property of one spouse and the other spouse has been judicially declared incapacitated by a court exercising original jurisdiction over guardianship and other matters under Title 3 of the Estates Code, the owner may sell, convey, or encumber the homestead without the other spouse’s joinder. Section 5.003 does the same where the homestead is community property: the competent spouse may sell without joinder once the other spouse has been judicially declared incapacitated.

When a spouse has disappeared, abandoned the home, or is permanently separated

Subchapter B of Chapter 5 covers what it calls the sale of a homestead under unusual circumstances, and it is a real route rather than a technicality. Sections 5.101 and 5.102 let one spouse file a sworn petition to sell, convey, or encumber the homestead without the other spouse joining. Section 5.101 applies where the homestead is that spouse’s separate property; Section 5.102 applies where it is community property. The petition must describe the property, state the facts that make it desirable to proceed without the other spouse, and allege that the other spouse:

• has disappeared and the location of the spouse remains unknown to the petitioning spouse;
• has permanently abandoned the homestead and the petitioning spouse;
• has permanently abandoned the homestead and the spouses are permanently separated; or
• has been reported by an executive department of the United States to be a prisoner of war or missing on public service of the United States.

Timing is set by Section 5.103. The petition may be filed in a court of the county in which any portion of the property is located not earlier than the 60th day after the date of the event described in the first three grounds, or not less than six months after the date the other spouse was reported a prisoner of war or missing on public service.

The statute also protects the absent spouse rather than simply clearing the way. Under Section 5.104 the court may appoint an attorney for the respondent, and shall appoint one for a respondent reported to be a prisoner of war or missing on public service, with a reasonable fee allowed as part of the costs of the suit. Section 5.105 requires citation and notice of hearing to issue and be served in the manner provided by Subchapter D of Chapter 3.

Section 5.106 then tells you what the order can look like. After notice and hearing the court renders an order it deems just and equitable as to a separate property homestead, and after hearing the evidence it renders an order describing or defining the community property that will be subject to each spouse’s management, control, and disposition. The court may impose any conditions and restrictions it considers necessary to protect the respondent’s rights, require a bond conditioned on the faithful administration of the property, and require all or part of the sale proceeds to be paid into the registry of the court for disbursement under its further directions. Section 5.108 adds that these remedies and powers are cumulative of the other rights, powers, and remedies the law gives spouses, so using this route does not cost you anything else you were entitled to.

In practice that means a one-signature sale is possible on these grounds, but the court usually keeps control of the money. If you are counting on walking away from the closing table with the full proceeds in hand, read Section 5.106(c)(3) again before you plan around it.

What filing for divorce does to a sale already under way

A divorce filing does not automatically void a contract, but it hands the court tools that can stop one, and it starts a clock.

Section 6.501 lets the court grant a temporary restraining order without notice to the other party, for the preservation of the property and the protection of the parties. The item that matters most for a house sale is Section 6.501(a)(11)(A), which lets the court prohibit a party, except as specifically authorized by the court, from selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of the parties or either party, whether that property is real, personal or intellectual and whether it is separate or community. Note what that item does not require: any bad intent at all. A good-faith sale at a fair price still breaches it unless the court specifically authorizes the sale. Those same five words are also the way through it, because your attorney can ask the court to authorize this particular closing. Section 6.501(a)(6) then covers the deliberate version separately: intentionally, knowingly, or recklessly destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of the parties or either party, with intent to obstruct the court’s authority to order a just and right division. Related items prohibit intentionally falsifying a writing or record relating to either party’s property, and intentionally misrepresenting or refusing to disclose, on proper request, the existence, amount, or location of property.

That order has limits, and they are worth knowing before anyone is served with one. Section 6.501(b)(2) provides that a temporary restraining order under that subchapter may not include a provision that excludes a spouse from occupancy of the residence where that spouse is living, except as provided in a protective order made in accordance with Title 4; that prohibits a party from spending funds for reasonable and necessary living expenses; or that prohibits a party from engaging in acts reasonable and necessary to conduct that party’s usual business and occupation. An order that purports to do any of those three things is overbroad on its face.

Section 6.502 covers temporary orders made after notice and hearing. The court may require a sworn inventory and appraisement of the real and personal property owned or claimed by the parties, require production of books, papers, documents and tangible things, order payment of reasonable and necessary attorney’s fees, court costs and expenses, appoint a receiver for the preservation and protection of the property, and award one spouse exclusive occupancy of the residence during the case. That last one reshapes a sale all by itself: a listing is a different proposition when only one spouse is living in the house and showings have to be arranged around that.

Two deadlines inside Section 6.502 are easy to miss and both work in a party’s favor. If the court on its own motion refers the suit to mediation while a motion for temporary orders is pending, Section 6.502(a-1) says it may not postpone the initial hearing on that motion to a date later than the 30th day after the date set for the hearing. And where a receiver is appointed, Section 6.502(c) requires the court to issue written findings of fact and conclusions of law supporting the appointment not later than the seventh day after it, while Section 6.502(b) requires the receiver to notify each lienholder of property under the receiver’s control not later than the 30th day after appointment.

If property has already been disposed of before any order was in place, the remedy is Section 7.009. Where the trier of fact determines that a spouse has committed actual or constructive fraud on the community, the court must calculate the value by which the community estate was depleted and the amount of the reconstituted estate, which Section 7.009(a) defines as the total value the community estate would have had if the fraud had not occurred, and must divide that reconstituted value in a manner it deems just and right. Section 7.009(c) lets the court grant any legal or equitable relief needed to do that, including awarding the wronged spouse an appropriate share of what remains of the community estate, a money judgment against the spouse who committed the fraud, or both. A house sold out from under the community is not simply gone.

Then the waiting period. Section 6.702(a) provides that the court may not grant a divorce before the 60th day after the date the suit was filed, and adds that a decree rendered in violation of that subsection is not subject to collateral attack. There are exceptions in Section 6.702(c): no waiting period is required where the court finds that the respondent has been finally convicted of, or received deferred adjudication for, an offense involving family violence as defined by Section 71.004 against the petitioner or a member of the petitioner’s household, or that the petitioner has an active protective order under Title 4, or an active magistrate’s order for emergency protection under Article 17.292 of the Code of Criminal Procedure, based on a finding of family violence committed during the marriage.

On where the suit is filed, Section 6.301 says a divorce may not be maintained in Texas unless, at the time of filing, either the petitioner or the respondent has been a domiciliary of the state for the preceding six-month period and a resident of the county of filing for the preceding 90-day period. Section 6.302 adds that if one spouse has been a Texas domiciliary for at least the last six months, a spouse domiciled in another state or nation may file in the county where the domiciliary spouse resides. For a Bell County house that generally means a Bell County district court, with the deed records themselves kept by the county clerk in Belton.

Lis pendens: the filing that can freeze a closing, and how it comes off

This is the mechanism most people have never heard of until a closing stalls. Property Code Section 12.007(a) provides that during the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property, a party to the action who is seeking affirmative relief may file for record with the county clerk of each county where part of the property is located a notice that the action is pending. Section 12.007(b) requires the filing party, or that party’s agent or attorney, to sign the notice, and requires it to state the style and number of the proceeding, the court it is pending in, the names of the parties, the kind of proceeding, and a description of the property affected. The clerk records it in a lis pendens record and indexes it in a direct and reverse index under the name of each party.

Once that notice is on record, a buyer takes with notice of the claim, which in practice is usually the end of a conventional sale until it is dealt with. Whether a particular divorce petition supports a lis pendens turns on whether the pleading actually contains a real property claim, which is fact-specific.

What matters is that the Property Code also gives the other side a defined way out, and the grounds are specific. Section 12.007(d) requires the filer, not later than the third day after filing, to serve a copy of the notice on each party to the action who has an interest in the real property affected. Section 12.0071 then lets any party apply to the court to expunge the notice, and Section 12.0071(c) says the court shall order it expunged if it determines that the pleading on which the notice is based does not contain a real property claim, that the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim, or that the person who filed the notice did not serve a copy as Section 12.007(d) requires. Notice of the motion must be served on each affected party on or before the 20th day before the hearing date.

The effect of winning that motion is substantial. Under Section 12.0071(f), once a certified copy of the expunction order is recorded, the notice and any information derived from it does not constitute constructive or actual notice of anything it contains, creates no duty of inquiry about the property, and does not affect the validity of a conveyance to a purchaser for value or a mortgage to a lender for value. It is not enforceable against such a purchaser or lender regardless of whether they knew of the lis pendens action, and an interest in the property may then be transferred or encumbered free of all matters asserted or disclosed in the notice and in the underlying action. The court may, at its discretion, require the prevailing party to submit an undertaking in an amount it determines.

There is a second, separate route in Section 12.008. On the motion of a party or another person interested in the result or in the affected property, and after notice to each affected party, the court hearing the action may cancel a recorded lis pendens at any time during the proceeding if it determines that the party seeking affirmative relief can be adequately protected by a deposit of money into court or by an undertaking. Where cancellation is conditioned on money, Section 12.008(b) sets the amount at the judgment sought plus the interest the court considers likely to accrue during the proceeding plus costs. Where it is conditioned on an undertaking, Section 12.008(c) requires a guarantee of payment of the judgment, interest and costs equal to twice the amount of the judgment sought, with two sufficient sureties approved by the court, served on the recording party’s attorney not less than two days before it is submitted for approval.

In other words, a lis pendens is a serious obstacle but not a permanent one, and a defective one, in particular one that was never served within three days, is vulnerable on its face. If a notice has been filed against a house you are trying to sell, that is a conversation for your attorney this week, not next month.

A lis pendens is not the only thing on a title search that can hold up a divorce sale. Judgment liens, tax liens, contractor’s liens and HOA assessments all behave differently and all have their own clearing routes; we cover those separately in liens that stop a house sale in Bell County.

The four ways a divorce house usually resolves

Almost every file ends in one of four shapes. The differences that matter are who has to sign, what has to be true before the route is available, and when the money moves.

Two statutes shape the last row. Family Code Section 7.001 requires the court, in a decree of divorce or annulment, to order a division of the estate of the parties in a manner the court deems just and right, having due regard for the rights of each party and any children of the marriage. Section 7.006 then lets spouses settle it themselves: they may enter a written agreement concerning the division of property and liabilities and maintenance of either spouse, and if the court finds the terms just and right, those terms are binding on the court. If the court finds them not just and right, it may ask for a revised agreement or set the case for a contested hearing. The agreement may be revised or repudiated before the divorce is rendered unless it is binding under another rule of law.

Note also that just and right is not the same as half each. Section 7.001 says what it says, and reimbursement claims can move the number: Section 3.402 recognizes a claim for reimbursement where one marital estate’s property confers a benefit on another’s that would be unjust enrichment if unpaid, including where improvements were made to one estate’s real property that enhanced its value. If one spouse put separate-property money into the house, that is a claim with a statutory basis rather than a grievance.

Two things travel with that claim, and they point in opposite directions. In the claimant’s favor: Section 7.007 requires the court to determine both spouses’ rights in a reimbursement claim and to apply equitable principles to it, and Section 3.406(a) lets the court impose an equitable lien on the property of the benefited estate to secure the claim. That lien is what makes the claim collectable when the other spouse keeps the house, because Section 3.404(b) says the claim creates no ownership interest in the property itself. Against it: Section 3.402(g) allows the claim to be offset by the value of any related benefit the conferring estate received, including income from the property and any reduction in income tax from deductions such as depreciation, interest, taxes and maintenance, with the party seeking the offset carrying the burden of proof under Section 3.402(h). Section 3.402(f) then has the court resolve the whole thing on equitable principles, including offsetting claims against each other. Expect it to be argued both ways.

If the division is not what you expected, Section 6.711(a) gives you a way to see the court’s reasoning. In a suit for dissolution in which the court has rendered a judgment dividing the estate, on request by a party the court shall state in writing its findings of fact and conclusions of law, including the characterization and value of all assets, liabilities, claims and offsets on which disputed evidence was presented. Section 6.711(b) requires the request to conform to the Texas Rules of Civil Procedure, so ask your attorney about it at the time rather than months later.

Buying the other spouse out: how an owelty lien works

Texas homestead protection is strong, which is exactly why paying a departing spouse out of the house takes a specific instrument. Article XVI, Section 50(a) of the Texas Constitution protects the homestead from forced sale for the payment of all debts except a listed set. Section 50(a)(3) lists an owelty of 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. Section 50(a)(4) separately excepts the refinance of a lien against a homestead.

Those two subsections together are what lets a staying spouse refinance and hand the departing spouse their share of the equity at closing. The constitutional category matters: an owelty under Section 50(a)(3) is a different animal from the home equity extension of credit described in Section 50(a)(6), which carries its own set of conditions. One of those conditions limits you: Section 50(a)(6)(B) caps the loan, added to the outstanding balances of all other debt secured by valid encumbrances of record against the homestead, at 80 percent of the homestead’s fair market value. Most of the others protect you, which is why the constitutional notice to borrowers states that home equity loans have important consumer protections. Section 50(a)(6)(C) makes the credit without recourse for personal liability against each owner and each owner’s spouse unless they obtained it by actual fraud. Section 50(a)(6)(D) allows the lien to be foreclosed only by court order. Section 50(a)(6)(E) caps the fees necessary to originate, evaluate, maintain, record, insure or service the credit at two percent of the original principal, excluding a third-party appraisal, a survey, the state base title premium and a title examination report. Section 50(a)(6)(M)(i) bars closing before the 12th day after the later of the application and the lender’s delivery of the notice prescribed by Section 50(g). Section 50(a)(6)(Q)(viii) lets the owner and any spouse rescind within three days after the credit is made without penalty or charge. And Section 50(a)(6)(Q)(x) makes the lender or holder forfeit all principal and interest if it fails to comply with its obligations and fails to correct that failure within 60 days of being notified by the borrower. An owelty refinance under Sections 50(a)(3) and 50(a)(4) is usually the cheaper route, but it is not an extension of credit under Section 50(a)(6) and so does not carry that set of protections, which is one more reason to ask the lender in writing which category it is documenting and why. Lenders and title companies document the two differently, so have the attorney drafting the decree and the lender underwriting the refinance agree on the wording before anyone signs. An owelty that is not properly created in the decree or the agreement is a problem discovered late, at the closing table.

Does the seller’s disclosure notice still apply?

This one produces more wrong answers than any other question on this page, because the statute contains an exemption that people apply far too broadly.

Property Code Section 5.008(a) requires a seller of residential real property comprising not more than one dwelling unit in Texas to give the purchaser the written notice the section prescribes, or one substantially similar containing at a minimum all of its items. Section 5.008(e) then lists the transfers the section does not apply to. Two are directly relevant in a divorce: Section 5.008(e)(8) exempts a transfer between spouses resulting from a decree of dissolution of marriage or a decree of legal separation, or from a property settlement agreement incidental to such a decree, and Section 5.008(e)(1) exempts a transfer pursuant to a court order or foreclosure sale. Section 5.008(e)(6) exempts a transfer from one co-owner to one or more other co-owners, Section 5.008(e)(7) a transfer made to a spouse or to a person in the lineal line of consanguinity of a transferor, and Section 5.008(e)(5) a transfer by a fiduciary in the course of the administration of a decedent’s estate, guardianship, conservatorship, or trust, which is the one that applies where a guardian is selling for a spouse who has been judicially declared incapacitated.

What is generally not on that list is a sale to an ordinary third-party buyer. Deeding the house to your spouse under the decree is exempt under Section 5.008(e)(8). Selling it on the open market usually is not, and the fact of a divorce does not change that by itself. The one place to ask rather than assume is a sale made under a court order, because Section 5.008(e)(1) exempts a transfer pursuant to a court order and how far that reaches a court-authorized sale to a third party is a question for your attorney on the wording of your order. When in doubt, complete the notice. Nothing is lost by delivering one you did not strictly owe, and Section 5.008(f) hands the buyer a seven-day exit if you owed one and did not deliver it.

Two further subsections help a seller who has been out of the house. Section 5.008(d) says the notice is completed to the best of the seller’s belief and knowledge as of the date it is completed and signed, and that if the information required is unknown to the seller, the seller indicates that fact on the notice and by that act is in compliance with the section. Marking an item unknown, honestly, is compliance, not a gap. Section 5.008(c) also provides that a seller and a seller’s agent have no duty to disclose or release information about whether a death by natural causes, suicide, or accident unrelated to the condition of the property occurred on the property, or about whether a previous occupant had, may have had, has, or may have AIDS, HIV related illnesses, or HIV infection.

And the buyer’s remedy, which is the reason not to be casual about the timing: Section 5.008(f) requires the notice to be delivered by the seller to the purchaser on or before the effective date of an executory contract binding the purchaser to purchase the property, and provides that if a contract is entered without the seller providing the notice, the purchaser may terminate the contract for any reason within seven days after receiving it. A late notice hands the other side a free exit for a week. We go through the form question by question in the seller’s disclosure and an as-is cash sale.

Two federal tax rules worth knowing before you sign

Nothing here is tax advice, and basis, improvements, depreciation and filing status all change the answer. Run your own numbers with a CPA. But two provisions come up in almost every divorce involving a house, and knowing they exist changes the order in which people do things.

The first is Internal Revenue Code Section 1041. Subsection (a) provides that no gain or loss is recognized on a transfer of property from an individual to, or in trust for the benefit of, a spouse, or a former spouse but only if the transfer is incident to the divorce. Subsection (b) says the property is treated as acquired by the transferee by gift and that the transferee’s basis is the adjusted basis of the transferor. Subsection (c) defines incident to the divorce as a transfer that occurs within one year after the date on which the marriage ceases, or that is related to the cessation of the marriage. So the interspousal transfer itself is usually not the taxable event; the later sale to a third party is, and the spouse who keeps the house carries the original basis into it. Two exceptions sit outside that rule and both are worth checking before a deed is signed. Section 1041(d) provides that subsection (a) does not apply at all if the spouse or former spouse receiving the property is a nonresident alien, which is not an edge case in a military community. Section 1041(e) limits nonrecognition on a transfer of property in trust to the extent that the liabilities assumed, plus the liabilities the property is subject to, exceed the total adjusted basis of the property transferred.

The second is Section 121, the principal residence exclusion. Subsection (a) excludes gain from the sale or exchange of property if, during the five-year period ending on the date of the sale, the property has been owned and used by the taxpayer as the taxpayer’s principal residence for periods aggregating two years or more. The cap is 250,000 dollars under Section 121(b)(1), and 500,000 dollars on a joint return where the conditions in Section 121(b)(2) are met. Section 121(b)(3) withholds the exclusion if, during the two-year period ending on the date of the sale, there was another sale or exchange by the taxpayer to which subsection (a) applied.

There is a fallback the two-year test does not advertise, and in a divorce it is the provision most likely to matter. Section 121(c)(2) applies where a sale fails the ownership-and-use requirement of subsection (a), or is caught by Section 121(b)(3), and the sale is by reason of a change in place of employment, health, or, to the extent provided in regulations, unforeseen circumstances. Section 121(c)(1) then prorates the dollar cap by the ratio of qualifying months to 24 rather than removing the exclusion. And Treasury Regulation 1.121-3(e)(2)(iii)(D) lists divorce or legal separation under a decree of divorce or separate maintenance as one of the specific events deemed to be unforeseen circumstances, so it is a listed safe harbor rather than something you argue from the facts. A spouse who has owned and used the house for 14 months instead of 24 is not looking at nothing. Ask your CPA to run the Section 121(c) figure before assuming the exclusion is lost.

One further provision matters in a Fort Hood community. Under Section 121(d)(9)(A) an individual may elect to suspend the running of the five-year period described in subsections (a) and (c)(1)(B) during any period that the individual or the individual’s spouse is serving on qualified official extended duty as a member of the uniformed services, as a member of the Foreign Service of the United States, or as an employee of the intelligence community. Section 121(d)(9)(B) allows that suspension to extend the five-year period by up to ten years. Section 121(d)(9)(C) defines qualified official extended duty to include extended duty while serving at a duty station at least 50 miles from the property, or while residing under Government orders in Government quarters. Section 121(d)(9)(D) allows only one such election at a time and allows it to be revoked at any time. A service member who was posted away and is now divorcing may still be inside a window the plain five-year rule looks to have closed.

Two divorce-specific rules then sit inside Section 121(d)(3). Under subparagraph (A), where an individual holds property transferred to them in a transaction described in Section 1041(a), the period that individual owns the property includes the period the transferor owned it. Under subparagraph (B), solely for purposes of Section 121, an individual is treated as using property as that individual’s principal residence during any period of ownership while that individual’s spouse or former spouse is granted use of the property under a divorce or separation instrument. Subparagraph (C) defines a divorce or separation instrument as a decree of divorce or separate maintenance or a written instrument incident to such a decree, a written separation agreement, or a decree requiring a spouse to make payments for the support or maintenance of the other spouse.

The practical consequence of subparagraph (B) is that the spouse who moves out is not automatically running down a clock, provided the other spouse’s use of the house is granted under one of those instruments. That is worth confirming with your CPA before anyone rushes a sale to beat a deadline that may not apply.

Where a cash sale fits, and where it does not

Bell County Cash Offers is a home-buying business. It is not a real estate brokerage. Jessie Walters separately holds Texas real estate broker license No. 509401 and owns JD Walters Real Estate LLC. When this business buys a house, the buyer is acting as a principal for its own benefit and is not representing you. In a divorce, where both sides are already watching each other closely, you should know which hat anyone at the table is wearing.

With that said, here is the honest version of the trade. A cash offer buys speed, certainty and the removal of repairs from the equation. It does not buy the highest number. A house in good condition, prepared and marketed properly, generally brings more on the open market than any cash buyer will pay, because a cash buyer is pricing in the repairs, the holding costs and the risk of being wrong.

Where that trade is genuinely worth making in a divorce:

• Both parties need a fixed number and a known date more than they need the last few percent, because the decree has to divide something certain.
• The house needs work and neither spouse is willing or able to fund it while the case is pending.
• Showings are impractical, because one spouse has exclusive occupancy under a temporary order or the arrangement makes a weeks-long listing process unworkable.
• A conventional buyer has already fallen through once and the delay is costing both sides more than the price difference.

Where it is the wrong call, and we will say so: the house is in reasonable condition, both parties can cooperate for a few weeks, and nobody is under a hard deadline. In that situation listing it is very likely to put more money on the table for both of you to divide, and the month you choose to list matters more than most people expect. JD Walters Real Estate, the brokerage Jessie Walters owns, has written up how the selling calendar actually plays out in Bell County, including the statutory deadlines that move a seller’s net more than the season does. Read that before you assume a fast sale is the only way to settle the house.

One thing a cash sale does not do is get you around Family Code Section 5.001. If the house is the homestead, we still need both spouses to sign, or a court order that takes the place of the signature. Nobody can buy their way past that, and any buyer who tells you otherwise is a reason to get a second opinion. If you want to see how the two routes compare side by side on a specific house, start with a cash offer compared with a traditional listing.

A practical order of operations

1. Pull the deed and a current payoff statement, and establish whether the house is the homestead. Everything else follows from that answer. If the answer is no, because the spouses made their homestead somewhere else or the house has always been a rental, the joinder requirement in Section 5.001 does not reach it, and Article XVI, Section 50(d) of the Texas Constitution lets a purchaser or lender for value without actual knowledge conclusively rely on an affidavit that designates other property as the homestead and states that this property is not. Where that is genuinely the case, and the house is also under one spouse’s sole management under Section 3.102(a), a one-signature sale is possible with no court involved. Do not sign such an affidavit unless it is true.
2. Ask your attorney whether a temporary restraining order, a temporary order under Section 6.502, or a recorded lis pendens is in place or likely. If a notice is already on record, deal with it first.
3. Get two numbers before the decree fixes anything: what the house would realistically bring listed, and what a cash buyer will actually pay. A decree should divide a real figure, not an assumption. Our home evaluation gives you one of the two.
4. Decide the route, whether that is selling now, buying the other spouse out, or selling after the decree, and have the decree or agreement say so in terms a title company can follow.
5. Agree in writing where the proceeds are held and how they are split, including who pays the mortgage, taxes and insurance until closing.
6. Confirm who signs: both spouses under Section 5.001, or the petitioning spouse under a Chapter 5 order. Do not leave this to the week of closing.
7. Complete the seller’s disclosure honestly if a third-party buyer is involved, mark genuine unknowns as unknown, and deliver it on or before the effective date.

What this page does not do

This is a summary of statutes, written to help you ask better questions. It is not legal advice and it does not account for the facts of your case: a premarital agreement, a partition or exchange agreement, a bankruptcy, a pending foreclosure, a property outside Texas, or a protective order can each change the analysis completely. Family Code Section 7.002 alone sets out special rules for property acquired while a spouse was domiciled in another state. Use a family law attorney, and have a CPA look at the tax side before you sign a contract rather than after.

If the house is also an inherited property, or there is an estate in the picture alongside the divorce, the probate side has its own sequence. See selling an inherited house in Bell County.