Can you? Yes.
But should you? Probably not. At least not without some preparation.
Here are some things you should know if you are thinking about buying a house before your divorce is final.
- Texas is a community property state. There is not a “legal separation” in Texas. So, you can’t just assume that you are “on your own” and the new home will be your separate property.
- When a divorce is filed, you need to know about certain “standing orders” that are in place. This means that the Court automatically puts orders in place that may prevent you from spending community funds on items other than necessities, legal fees,or community debts. In other words, once the courts are involved, you can’t just spend freely without risking the violation of a court order.
- You can negatively impact your portion of the property split. If you do buy the home, having that awarded to you on “your side of the balance sheet” in the final divorce may mean that you don’t get other property that you were counting on. Whether the funds that you want to use to purchase the home are “separate” or “community” funds can be a complicated issue.
- It will involve your spouse legally. For one thing, a credit check will be performed. For another, the title companies have to follow Texas community property law. And, don’t even think about having one of your friends or relatives purchase it “for you”, secretly. (Hello, contempt of court and fraud!).
- It ain’t over til its over. What if you don’t get all the property you thought you were going to get in your divorce? What if you get more debt that you expected? Do you really know what your financial picture will be after the divorce and whether you can afford the new place you chose?
- But… sometimes you can do it.… Seek the advice of your divorce lawyer. Do not decide on your own and inform your lawyer after it is finished. There are ways to make sure that you are not violating an agreement, and to even get your spouse’s cooperation (on this one issue, at least). Making sure that this purchase is part of a Rule 11 agreement, mediated settlement agreement, temporary orders hearing, contract or letter agreement between the parties will assure that no one cries “foul” later on. Also, your attorney can tell you if your purchase is likely to have any negative financial impact for you in the property split, or if it may have a negative psychological impact on your soon to be ex. Contact a trusted divorce and family law attorney who will be familiar with your situation and with the Texas family code and property law.