Published on August 31, 2023

Understanding Homestead Rights in Texas Divorces

Texas law provides strong protections for a family’s homestead, even during divorce. But what happens when a couple splits up and the future of the home is uncertain? Whether you’re keeping the house, leaving it, or disputing ownership, understanding how homestead rights apply in a Texas divorce is crucial. At Guerra Days Law Group, we help clients protect their rights in every aspect of real estate division—including claims involving the marital homestead.

What Is a Homestead in Texas?

A homestead is a property used as a person’s primary residence. Texas law recognizes two types of homesteads:

  • Urban Homestead: A residence in a city or town, up to 10 acres (including improvements)
  • Rural Homestead: A residence in the country, up to 100 acres for an individual or 200 acres for a family

Homestead status provides several protections, including:

  • Protection from certain creditors
  • Restrictions on forced sale or transfer without proper consent
  • Tax exemptions for property owners

These protections can significantly affect divorce proceedings involving real property.

Homestead Rights During Marriage

During a marriage, both spouses have homestead rights—even if only one name is on the title. This means one spouse cannot sell, transfer, or refinance the property without the other’s consent, even if they are the sole title holder. This rule exists to protect the non-titled spouse and ensure stability for the family.

Can One Spouse Be Forced Out of the Homestead?

In a divorce, one spouse may request exclusive use and possession of the marital home during the proceedings. If the court grants this request in a temporary orders hearing, the other spouse must move out—even if they co-own the home. This does not terminate their homestead rights or interest in the property.

Homestead Rights After Divorce

Once the divorce is finalized and the home is awarded to one spouse, the other’s homestead rights typically end. However, if the divorce decree does not clearly resolve ownership and possession, disputes may continue, especially when one party refuses to vacate or remove liens from the property.

Special Homestead Protections for Surviving Spouses

Homestead rights also protect surviving spouses in probate proceedings. If a spouse dies before the divorce is final, the surviving spouse may have the right to remain in the homestead for life, even if the home was the deceased spouse’s separate property. These rights are governed by the Texas Estates Code and must be considered when death occurs before a divorce is complete.

Dividing Homestead Property in Divorce

In Texas, the court must make a “just and right” division of the community estate. The marital home—regardless of homestead designation—is subject to this division if it was acquired during the marriage. Common options include:

  • Awarding the home to one spouse with a buyout of the other’s equity
  • Ordering the home sold and dividing the proceeds
  • Allowing temporary possession to one spouse until the children graduate or a sale occurs

The fact that a property is a homestead does not prevent the court from dividing it, but it does impact how the process must be handled to preserve protections.

Selling a Homestead During Divorce

If the couple agrees to sell the home during divorce, both must participate in the sale unless one spouse’s authority is established by court order. Title companies will require both signatures unless ownership has been clearly awarded in the decree or a prior partition agreement.

When One Spouse Claims a Separate Homestead

Sometimes, spouses live apart and claim different homesteads—particularly in separation scenarios. Texas law generally permits only one homestead per person or family. Courts will analyze evidence of primary residence, use, and intent to determine which property qualifies. This issue can affect exemptions, taxes, and legal protections.

Homestead Rights and Creditors in Divorce

Homestead protections shield against certain unsecured creditors but do not apply to all debts. For example, a mortgage lender, property tax authority, or mechanic’s lienholder can still foreclose. During divorce, the court may allocate responsibility for these debts, but creditors are not bound by the divorce decree unless refinancing or releases are executed.

Why Homestead Rights Must Be Handled Carefully

Failing to address homestead rights in your divorce decree can create title problems, tax complications, and disputes about possession. It’s vital to include language that:

  • Clarifies who is awarded the home
  • Specifies the termination of homestead rights