What legally belongs to an owner of a home when the other owner is getting a divorce?

UPDATED: Oct 2, 2022

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What legally belongs to an owner of a home when the other owner is getting a divorce?

I purchased a home with my son. His girlfriend moved in with him. They split and were considered common-law married. In the divorce proceedings, the house was split between them and they agreed to give me $10,000 out of a profit of approximately $95,000. I thought the split would be between me and my son since I invested $38,000 as a down payment. He did pay me back $7,000. What is my legal right to the proceeds and I have not signed the paperwork to allow the sale of the home?

Asked on August 19, 2019 under Family Law, Texas


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

Answered 3 years ago | Contributor

If the house was purchased before this "alleged marriage", then the house would be separate property and it should have been divided between you and your son.  A spouse that helps pay for another spouse's separate property cannot be awarded another spouses separate property, but they can be reimbursed for amounts that the community used to pay for the separate property.  For example, if $10k was used by the "community estate" to pay for the house over three years, then that spouse could make a reimbursement claim to those funds paid.
If your name is on the deed, then they cannot sale the house without your specific authorizaiton because you are considered an owner.  Even if your son got an order which required the house to be sold, you will not be bound by that order if you were not a party during the litigation.
If your name is not on the deed, then you may not be considered and owner, but rather a creditor to your son since you loaned him funds for the purchase.
You really need to take all of your paperwork regarding this house to a family law attorney and let them review the documentation for a full assessment of the situation.  You may need to intervene in the divorce action and file a motion for new trial....or you may need to file a "partition" suit to have a portion of the house declared as partially your's.
On a related note, we have seen an up tick in common law divorce actions.  Ironically, we have had many clients come in where  an attorney convinced them they needed a divorce, when they were never actually common law married.  Three elements are required for a common law marriage:  cohabitation, an agreement to be married, and a "holding out" (i.e. telling others) of the marriage.  If any ONE of these three elements is not met, then it's not a common marriage.  You may want to encourage your son to get a second opinion as he may have been tricked into filing for a divorce when he really didn't need one.

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