Disclaimer: This article is for educational purposes only and does not constitute legal advice. Always consult a licensed attorney to discuss your specific situation.
Detailed Answer
Under Texas law, spouses hold community property equally during marriage. When you and your spouse separate but remain legally married, you each still own a 50% interest in community real estate as cotenants. Texas Property Code Chapter 23 allows any cotenant to file a partition suit to divide real property. See Texas Property Code § 23.001 et seq. (Tex. Prop. Code § 23.001).
However, if the property in question is your family homestead—the home you occupied with your spouse—additional protection applies. The Texas Constitution prohibits selling, leasing for longer than three years, or partitioning the homestead without both spouses’ consent or a divorce court order. See Tex. Const. Art. XVI, § 51 (Art. XVI, § 51).
Key points:
- If the real property is not your homestead (e.g., a rental property or vacation land), either spouse may file a partition suit to divide the land or force its sale.
- The court can physically divide the parcel when practicable or order sale and split the proceeds according to ownership shares.
- For personal property (furniture, vehicles, investments), Texas has no formal partition action. You and your spouse must agree on dividing these assets or pursue a divorce proceeding.
Timing: You do not need to wait for your divorce decree to request partition of non-homestead real property. Filing earlier can protect your interest and limit conflicts over use, taxes, or mortgage payments.
How to File a Partition Suit
- Identify the property and confirm it is community real estate but not the homestead.
- Prepare a petition under Texas Property Code Chapter 23, naming yourself and your spouse as defendants.
- File in the county where the property lies and serve your spouse according to Texas Rules of Civil Procedure.
- Attend the hearing. The court will consider practical division or order a sale with proceeds divided equally.
Helpful Hints
- Confirm whether your property qualifies as the “homestead”—family residence protections are strict.
- Gather deeds, mortgage statements, tax records, and any written agreements about property use or payments.
- Consider mediation or negotiation first to reduce legal fees and reach an amicable split.
- Track who pays taxes, insurance, and maintenance; courts may consider contribution when dividing proceeds of sale.
- Consult a real estate or family law attorney to ensure proper procedure and protect your rights.