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Dealing with the marital homestead

One of the first major purchases that newly married couples in San Antonio make together is a home. Sharing a residence together, however, is not always the secret ingredient to marital bliss. In fact, the Texas Department of State Health Services report that as recently as 2012, over 80,000 divorces were reported to the Texas Vital Statistics Unit. For many of those separating couples, one of the biggest issues they must deal with is what to do with their marital homestead.

The Texas Family Code states that regardless of whether a homestead is considered to be separate or community property, one spouse cannot sell or otherwise dispose of it without the permission of the other. There are, however, certain exceptions to this rule. For example, if one spouse has been declared to be legally incapacitated by the court, the other may seek to sell the marital home without his or her consent. This exception applies regardless of the homestead’s property distinction.

Even in the event that his or her spouse is still fully capable, one wanting to sell the homestead can still seek permission to do so without needing the other’s consent. He or she must file a petition with the court highlighting the reasons to sell the home as well as citing the fact that the other:

  •          Has disappeared and his or her whereabouts are unknown
  •          Has permanently abandoned the home
  •          Has been classified as a prisoner of war by the Executive Department or missing while on public service of the United States

The petition seeking permission to sell the homestead cannot be filed any earlier than 60 days from the date the abandoning spouse has gone missing or six months from the time he or she was declared a prisoner of war. 

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