TC-FM-Prop-Art-001 (Rev.6/2018) Page 1 of 2
Divorce & Real Property (house or land)
My spouse & I own a house together, do I need a lawyer?
Real estate law is very technical. You are likely to make a costly mistake without the
help of a lawyer.
In most cases you will need to hire a private lawyer to give you advice, add additional
language to your Final Decree of Divorce and draft any real estate documents needed for your case.
The law library lawyers cannot help with real property issues.
My spouse & I own a house together, what are our options?
A private lawyer can explain the options available in your particular case and help you decide which option is
best for you. Here are some common options to discuss with your lawyer:
● Sell the house and split the proceeds.
● One spouse keeps the house and refinances the mortgage if money is still owed on the property.
● One spouse keeps the house and pays the other spouse for his or her share of the equity in the house.
● One spouse keeps the house and the other spouse has the right to live in the home for a period of time.
● Both spouses keep an undivided 50% interest in the house.
Each option will require that additional language be added to your Final Decree of Divorce form. Most options
will also require separate real estate documents.
If my spouse keeps the house, what happens with the mortgage?
Your Final Decree of Divorce will usually order your spouse to pay the mortgage.
However, the mortgage company is not bound by your Final Decree of Divorce.
So, if your name is on the mortgage and your spouse keeps the house but doesn’t pay the
mortgage, the mortgage company could seek payment from you. A foreclosure on the
house would also severely damage your credit.
Even if your spouse pays the mortgage, just having your name on the mortgage may affect your ability to get a
loan to buy your own house or car or even get a credit card.
To avoid these problems, you may want your Final Decree of Divorce to order your spouse to refinance the
mortgage by a certain date and order that the house must be sold if your spouse doesn’t refinance.
What real estate documents do I need?
Here are some common real estate documents and additional language used in a divorce:
Special Warranty Deed - This real estate document is signed by the spouse not
keeping the house to transfer ownership of the house to the spouse keeping the house.
Deed of Trust to Secure Assumption of Mortgage – This real estate document is
used if the mortgage will remain in the names of both spouses. It is signed by the
spouse keeping the house. If the mortgage isn’t paid, it gives the spouse not keeping
the house the opportunity to pay the mortgage and take back title to the house.
Additional language for your Final Decree of Divorce that orders the spouse keeping the house to refinance
the mortgage by a certain date or sell the house if unable to refinance.
Additional language for your Final Decree of Divorce that (1) orders the spouse keeping the house to pay
the other spouse a specific amount of money by a certain date to reimburse the other spouse for his or her
share of the equity in the house; (2) orders a lien (called an owelty lien) placed on the house to make sure
the money is paid and (3) orders the spouse keeping the house to sign a Real Estate Lien Note.
TC-FM-Prop-Art-001 (Rev.6/2018) Page 2 of 2
More Real Property FAQs
What is real property?
Real property is land and anything permanently
attached it, such as a house or other buildings.
Real property includes mineral interests. Real
property does not include mobile homes.
What is the “legal description” of our
property?
The “legal description” is used to officially identify
real property. Your Final Decree of Divorce must
include the complete legal description of your
property. If it doesn’t, your Final Decree of Divorce
will not be sufficient to pass title to the property.
The legal description is NOT the physical address
of your property.
The legal description may describe the property by
its lot number, block and subdivision. Or it may
describe the property in metes-and-bounds. The
legal description may also include a volume and
page number, film code number, or county clerk file
number.
Where can I find the legal description?
You can find the legal description on the deed or
deed of trust for the property. For a copy of the
deed or deed of trust, contact the county clerk in
the county where the property is located.
For property in Travis County, go to the Travis
County Clerk’s Office at 5501 Airport Blvd. or
search online at
http://www.tccsearch.org/RealEstate/SearchEntry.aspx.
WARNING! Do NOT use the legal description on
your tax bill or the tax appraisal website because it
is usually incomplete and may be incorrect.
How do I find a lawyer?
There are private lawyers you can hire for a
reasonable fee just to help with the issues involving
your house. You may then handle the rest of your
divorce case yourself.
If you need help finding a lawyer, call the Lawyer
Referral Service at 512-472-8303. Ask for a
lawyer willing to provide “limited scope
representation.”
When is real property community property?
Real property purchased during the marriage is
usually considered to be community property
owned by both spouses. This is true even if only
one spouse is on the deed.
When is real property separate property?
Real property purchased by one spouse before the
marriage or inherited or received as a gift during
the marriage is usually considered to be that
spouse’s separate property. However, the other
spouse may be entitled to a percentage of the
equity based on the length of the marriage and
other factors. Talk to a lawyer if this is an issue.
How do I calculate the equity in our
property?
To calculate the equity in your property:
1) Determine the fair market value of the property
(you may need to hire an appraiser);
2) Subtract what is owed on the property
(mortgage, liens, taxes, etc.); and
3) Subtract what it would cost to sell the property.
Where do I file my real estate documents?
Real estate documents, including deeds and deeds
of trust, must be filed at the county clerk’s office
where the property is located.
The Travis County Clerk’s Office is located at 5501
Airport Blvd., Austin, Texas.
