4.32 Divorces

4.32.1

In General

Whenever a party with title to or an interest in property is involved in a divorce it is necessary to determine the legal effect of the divorce on the title to the property.

To determine the validity of a decree of divorce or dissolution of marriage and its effect on any title to property, determine:

  • The validity of the decree:

    Did the court have jurisdiction over the subject matter of the action under state law.

    Did the court have jurisdiction over the parties to the action? We require that the spouses make a personal appearance or waiver, or be personally served in the divorce. Otherwise, call a Texas Underwriter.

    Did the court have jurisdiction over the land? We do not rely upon a divorce decree divesting and vesting title if the land is not located in the state where the court is located.

    Is the decree final? Is there any possibility of appeal or review? We cannot rely upon decrees which are not final unless the parties agree to the substance of the decree.

    Is there an adequate legal description of the property being awarded?

    Is there proper divestiture language in the decree?

  • The legal consequences of the decree in regard to homestead or marital rights.

  • The nature of the interest held in the land:

    Title is held by one spouse only.

    Title is held by both spouses as joint tenants.

    Title is held by both spouses as community property.

    Title is held by one spouse as its sole and separate property.

  • Vendor's lien

    If refinanced, only need one spouse to sign, even if decree is inadequate to divest title and/or describe the property.

  • Owelty Liens

    Since 1995, the Texas Constitution has specifically authorized creation of an owelty lien to divide homestead property. An owelty can be used in both divorce and probate cases. In a divorce, the court order must leave the parties as tenants in common and order that an owelty lien be created to affect the division of property. If the order has vested title in one spouse and divested the other, the order must be reformed (nunc protunc) to put the parties as tenants in common. The owelty lien then allows the owner to put both the acquired interests and the existing interest as collateral for the loan.

See Bulletin TX000034 for more details.

4.32.2

Common Law Divorce

  • In Texas, common law marriage is recognized when a man and a woman live together (no minimum time is required), hold themselves as married and have the intent to be married.

  • Section 2.40(b), Family Code, provides that suit to declare an informal marriage must be brought within 2 years if the date the parties separated and ceased living together. Otherwise, it is rebuttably presumed that the parties did not intend to enter into an agreement to be married. (Effective 9-1-2005).