Selling a House During a Divorce in Texas: Community Property and Timing

The house is usually the thing that makes a Texas divorce complicated. Everything else can be split with a spreadsheet. The house has a mortgage, a homestead exemption, two names (or sometimes one), a judge who has an opinion about it, and a monthly payment that does not pause while the two of you decide. Most people we talk to are not arguing about the house. They just want to know what they are allowed to do, and when. This guide answers that: who owns it under Texas law, who has to sign, what the court does the day somebody files, and how the timing of the sale quietly changes your tax bill.

Key highlights

• If you bought it during the marriage, it is almost certainly community property. Whose name is on the deed does not decide it, and the law presumes community until someone proves otherwise.
• Both spouses sign the homestead, always. Texas Family Code § 5.001 blocks one spouse from selling it alone, even if the house is that spouse’s separate property.
• The earliest a Texas divorce can be granted is day 61. § 6.702 sets a 60 day waiting period, with a narrow family violence exception.
• Filing freezes the house. Most Texas courts drop a standing order on the case automatically that forbids selling or encumbering property without an agreement or a court order.
• Selling while you can still file a joint return may reach the $500,000 IRS gain exclusion instead of $250,000 each. On a long held house that is worth a conversation with a CPA.
• An as-is cash sale takes repairs, showings and financing risk off the table, which matters when neither of you wants to spend money the other is watching.

The short answer

You can sell the house during a Texas divorce. Thousands of couples do it every year, usually because the payment is the one bill neither of them can carry alone. You need two things, and they are not optional. First, both spouses have to sign, because Texas protects the homestead with a rule that ignores whose name is on the deed. Second, you need permission to act despite the standing order the court almost certainly put on your case the day it was filed. That permission is normally a written agreement between the two of you, often turned into an agreed order, that tells the title company how to handle the money. Get it in writing before you sign a contract with a buyer. Doing it in the other order is how deals fall apart in week four.

Whose house is it, legally

Texas is a community property state, and the rule is simpler than people expect. Texas Family Code § 3.002 says community property “consists of the property, other than separate property, acquired by either spouse during marriage.” Separate property is what you brought into the marriage, plus anything you were given or inherited during it.

Here is the part that surprises people. The deed does not settle the argument. As TexasLawHelp, the legal aid site run for Texans who do not have a lawyer, puts it: “A house or land purchased during the marriage is community property, no matter whose name is on the deed, unless the house was purchased with the separate property money of one spouse.” If you bought it while married, it is community property even if only one of you signed the note and only one of you made every payment.

And the law leans that way on purpose. § 3.003 says property either spouse possesses during or on dissolution of the marriage “is presumed to be community property,” and that the proof needed to establish something as separate property is “clear and convincing evidence.” That is a high bar. If the house really was yours before the wedding, or you bought it with inheritance money, go find the closing statement and the bank records now. A clear memory is not evidence.

What the court does with the community estate is set by § 7.001: the judge orders a division “in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Read that twice, because “just and right” is not the same as “half.” Texas judges can and do split a community estate unevenly when the facts call for it. Nobody can promise you 50 percent of the house just because Texas is a community property state.

Why both of you sign, even when one name is on the deed

This is the single most useful thing to know before you call a real estate agent or a cash buyer. Texas Family Code § 5.001 says it plainly: “Whether the homestead is the separate property of either spouse or community property, neither spouse may sell, convey, or encumber the homestead without the joinder of the other spouse except as provided in this chapter or by other rules of law.”

Notice what that covers. It is not only about community property. Even a house that is provably your separate property, bought years before you met, cannot be sold out from under a spouse once it is the homestead. The protection follows the home, not the title.

In practice this plays out at the title company, which is where Texas closings happen. The title company will pull the deed, see a marriage, and ask for both signatures. If one spouse will not sign, the file stops. There is no clever workaround, no form that fixes it, no buyer willing to close around it. Sellers sometimes arrive believing that because they alone are on the mortgage, they alone control the sale. They do not.

The 60 day clock, and the order that freezes the house

Texas will not let you divorce quickly, no matter how much you both agree. § 6.702 says “the court may not grant a divorce before the 60th day after the date the suit was filed.” So day 61 is the floor, and a contested case runs far longer. The statute carves out an exception where the other party has been finally convicted of or received deferred adjudication for a family violence offense, or where an active protective order is in place.

The bigger surprise is what happens on day one. Most Texas district courts attach a standing order to every divorce filed in their counties, automatically, without either party asking. The courts in Tom Green, Coke, Concho, Irion, Runnels, Schleicher and Sterling counties publish theirs in full, and it is a fair sample of what Texas courts order. Paragraph 3.5 prohibits both parties from “Selling, transferring, assigning, mortgaging, encumbering, or any other manner, alienating any of the property of the other party, whether personal property or real property, and whether separate or community, except as specifically authorized by this Order.” Paragraph 3.1 adds that neither of you may be “Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties.”

That language reaches your house. The standing order says the courts adopted it so that “the parties and their children should be protected and their property preserved while the lawsuit is pending.” It is not aimed at a cooperative couple selling a house they both want gone, but it still applies to them, and the title company will want to see how you got around it.

Getting around it is routine. The usual path is a written agreement signed by both spouses, often filed as an agreed order, that authorizes the sale and spells out what happens to the money: split at closing in agreed shares, or held in the title company’s or a lawyer’s trust account until the decree says who gets what. Many couples choose to park the proceeds, because that removes the argument about the house and leaves one clean number for the judge to divide. Standing orders vary by county, so read the one actually attached to your case rather than assuming yours matches the sample above.

What the sale actually leaves the two of you

Divorcing couples anchor on the sale price and then get a shock at closing. The number worth arguing about is the net: price, minus the mortgage payoff, minus closing costs, minus whatever you spent getting the house ready, minus the payments you both made while it sat.

Texas is moving at an ordinary pace right now, not a hot one. Federal Reserve data from FRED puts the median days on market in Texas at 66 days in September 2026, barely changed from 67 a year earlier, and the median listing price at $355,765, down about 2.5 percent from $364,950 a year before. Two things follow from that. Those 66 days are how long the median listing sits before it goes pending, closes or comes off the market, so on a financed sale you add the buyer’s loan and appraisal on top before anyone gets paid. And a softening price is a reason not to let a house drift for a season while two people negotiate through lawyers.

Every month the house waits costs both of you the mortgage, the taxes, the insurance and the upkeep, usually while one spouse is also paying rent somewhere else. We broke the seller side down line by line in seller closing costs, explained, and the honest version of the speed question is in how fast you can actually sell a house for cash.

One more Texas detail. If you sell to an outside buyer, you owe the buyer a seller’s disclosure. Texas Property Code § 5.008 requires a seller of residential property of not more than one dwelling unit to deliver that notice on or before the effective date of the contract, and if it arrives late the buyer may terminate the contract for any reason within seven days of receiving it. Subsection (e) exempts a list of transfers, including those made pursuant to a court order and transfers between spouses resulting from a divorce decree. So the deed from one spouse to the other inside your case is treated differently from the sale to a stranger. Fill the form out honestly and together, because a disclosure signed by one angry spouse is a lawsuit waiting to happen.

Selling before the decree versus after

This is the part nobody mentions until it is too late, and on a house held for a long time it can be the most expensive decision in the whole divorce.

The IRS lets you exclude capital gain on the sale of a main home. Per IRS Topic 701, you can exclude up to $250,000 of that gain from your income, or “up to $500,000 of that gain if you file a joint return with your spouse.” You qualify by meeting the ownership and use tests: owning the home at least 24 months out of the five years before the sale, and living in it as a residence at least 24 months of the previous five years.

Put those together. A couple who sells while they can still file a joint return is working against a $500,000 ceiling. Two people who sell afterward as single filers are each working against $250,000. For most Texas houses the gain never gets near either number and this is academic. For a house bought twenty years ago in a neighborhood that took off, it is not academic at all, and the difference between closing in March and closing in July can be a real tax bill. Also worth knowing: the use test asks whether you lived there, which matters when one spouse moved out early. Ask a CPA before you pick a closing date. This is a question with a specific right answer for your numbers, and it is cheap to ask.

Your options, side by side

For a Texas couple who both want the house dealt with, the realistic menu looks like this:

How an as-is cash sale works in a Texas divorce

The mechanics are ordinary, and the divorce changes only two of them. You describe the house honestly, condition and all, and get a written cash offer, normally within about a day. Both spouses sign the contract, because of § 5.001. You give the title company the agreement or agreed order that authorizes the sale under the standing order, and tell it how the money is handled: split in agreed shares at closing, or held until the decree. A Texas title company then does what it always does. It runs title, clears liens and any back taxes out of the proceeds, and prepares the deed.

There is no lender, so there is no appraisal and no financing contingency that can fail in week five. There is no repair list, so nobody has to argue about who pays for the roof. And there are no showings, which matters more than people expect when one spouse is still living there. You take what you want from the house and leave the rest, cleanout included. If you want the version of this story from a different state, we wrote one for Alabama couples: selling a house during a divorce in Birmingham. The Texas market pages are here too, if you want the local picture: we buy houses in Texas and the Dallas and Houston guides.

How Sterling Home Offer helps

We buy single-family houses for cash across Texas, and divorce sales are a normal part of the work. What we can promise is narrow and real. A no-obligation cash offer in about 24 hours, based on the actual condition of the house. Strictly as-is, so nobody is spending money on repairs during a divorce. No commissions and no fees, so the offer is the number the title company works from. We will sign with both spouses and we will work with whichever lawyer or title company you choose, including holding proceeds in trust until your decree is signed if that is what your agreement says. And the closing date is yours. If you need to close fast because the payments hurt, we can usually do it in a couple of weeks once title is clear. If you need to wait for day 61, we will wait.

The bottom line

In Texas the house is probably community property no matter whose name is on the deed, both of you have to sign to sell the homestead, the court freezes the property the day somebody files, and the divorce itself cannot be granted before day 61. None of that stops a sale. It just means the paperwork has to go in the right order: agree in writing first, then sell. The couples who have the worst time are the ones who skip to the listing and discover the standing order at the title company. The ones who do fine are the ones who treat the house as the one decision they can make together, make it early, and stop paying for a place neither of them wants.

Sources

1. Texas Family Code § 3.002, Community Property: community property consists of the property, other than separate property, acquired by either spouse during marriage
2. Texas Family Code § 3.003, Presumption of Community Property, and the clear and convincing evidence standard for proving separate property
3. Texas Family Code § 5.001, Sale, Conveyance, or Encumbrance of Homestead: neither spouse may sell the homestead without the joinder of the other spouse
4. Texas Family Code § 6.702, Waiting Period: the court may not grant a divorce before the 60th day after the suit was filed, with the family violence exceptions
5. Texas Family Code § 7.001, General Rule of Property Division: a division the court deems just and right
6. Texas Property Code § 5.008, Seller’s Disclosure of Property Condition: the delivery deadline, the buyer’s seven day termination right, and the subsection (e) exemptions including transfers between spouses resulting from a divorce decree
7. Standing Order Regarding Property and Conduct of Parties, 51st, 119th, 340th and 391st Judicial District Courts (Tom Green, Coke, Concho, Irion, Runnels, Schleicher and Sterling counties), paragraphs 3.1 and 3.5
8. TexasLawHelp.org, Dividing Your Property and Debt in a Divorce: a house bought during the marriage is community property no matter whose name is on the deed
9. Internal Revenue Service, Topic No. 701, Sale of Your Home: the $250,000 and $500,000 gain exclusions and the 24 month ownership and use tests
10. Federal Reserve Bank of St. Louis (FRED), Housing Inventory: Median Days on Market in Texas, 66 days in September 2026 against 67 a year earlier
11. Federal Reserve Bank of St. Louis (FRED), Housing Inventory: Median Listing Price in Texas, $355,765 in September 2026 against $364,950 a year earlier