divorce and home

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divorce and home

Wife served me with divorce papers. I purchased home before marriage but she has always lived there with me. She is not on the deed only the beneficiary. She is now not letting me sell the house and I cannot afford mortgage on my own. What can I do? Can I refinance and rent the house out? My divorce date isn’t for a year..

Asked on October 11, 2016 under Family Law, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Before you sell the property, you need have a family law attorney review your paperwork.  It sounds like you can demonstrate that the home is separate property, but the court will first presume that it is community property until  hearing is held regarding that issue.  More and more courts are putting standing orders into effect when a divorce is filed which prohibit the parties from selling items when they have not been officially been declared separate or community property.
However, you are not without options.  A divorce does not have to take a year.  If you want to negotiate a resolution through the attorneys or a mediator, you can potentially be divorced and done in sixty days.... and in your final decree, you and her can devise a plan for dealing with the house issue. 
If she is filing and fighting for divorce just to torture you, then find an attorney to help you request temporary orders so that you can get permission from the judge to permit you to sell it.  Alternatively, you can ask the judge to order her to pay part of the mortgage if she persists in asserting that the house in community property or involves a community assets/interest.
If you and her have both moved out, then renting the home out is a good option (or a room or two out of the home), because it helps pay for the house while preserving the asset until you can have a hearing and request permission to sell it.


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