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My daughter bought her house before she married, and has paid all the mortgage payments. She is filing for divorce.

Little Elm, TX |

The papers aren't filed yet. Can she kick him out now? They live in Denton, Co. Texas. They have no children and have been married 21 months.

Attorney Answers 2

Posted

Spouses "kick each other out" all the time. Personally, however, unless there's a safety issue involved, I wouldn't recommend doing that. If she bought the house before the divorce, yes, it is at least theoretically her separate property, but her husband could make an argument that since any income she's paid the note with since marrying him is actually community property, there's been a mixing of "their" money into "her" house, giving him an interest in the house. Hopefully, that won't be an issue, but it might. I don't know what the situation is or how strained their relationship is right now, but ultimately, both parties are usually better off both emotionally and financially in the end if they can try to sit down, calmly talk things out, and come to an agreement. Highly contested divorces seldom really benefit either party, and "kicking him out" might be the first blow of a long, drawn-out fight that would end up hurting her, too. If she's really concerned about getting him out quickly, filing and immediately asking for temporary orders from the court might be the way to go.

This answer is intended only to give you general information on the subject you've asked about and does not constitute legal advice or establish an attorney-client relationship. If you feel you may need legal representation, please contact me by phone at (409) 750-0757, or by email at elizabethfoleylaw@gmail.com, and I'll be happy to provide you with a free consultation about your case (up to 30 minutes) and an explanation of my fee schedule, payment options, and the different levels of representation I offer to fit your specific legal needs and budget.

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Asker

Posted

Thank you. This sounds like sage advice and we will take it. I wish you were close enough to serve as her attorney!

M Elizabeth Gunn

M Elizabeth Gunn

Posted

You're very welcome, and thank you for the compliment--I wish I could help, but no, I don't see the commute working too well! Again depending on just how bad things are between them, and if the mythical "simple, totally uncontested divorce" doesn't seem likely, something she might consider is a new approach called "collaborative law". It's kind of like an agreement to mediate the divorce without constantly threatening to set the case for trial (except that normally an actual mediator's not involved--it's more the kitchen table approach, but with attorneys). If it doesn't work out, they can always go to trial, but NOT with those attorneys, so there's no financial incentive on the part of the attorneys to complicate things (not that everyone does that, but a lot of people at least feel like that's what's going on when they get the latest bill). It works great for some people, not so great for others, but it really can reduce anger and stress levels a lot if nothing else, so might be worth a little research. Good luck, and give your daughter lots of hugs--you can never go wrong there!

Asker

Posted

That part I can definitely handle! I had not heard of this approach, so thank you for this valuable information.

Posted

She can certainly ask to have him moved out. Understand that while the house is hers, mortgage payments made during the marriage are likely paid with income generated during the marriage, or community funds. Her husband could get half of those payments back, but not the home. However, if he used and benefited from the payments by living in the house, most courts are not going to make her pay it back as it is comparable to renting the space.

She should still hire a lawyer, if just to help push this divorce through. It sounds like it will be contested, and contested divorces can drag out a year or two easily without someone pushing them through the court system. On the other hand, if it is agreed, she could be done as quickly as 60 days from the date of filing.

This answer is intended for informational and educational purposes only and should not be considered legal advice nor forming the attorney client relationship. This attorney is licensed in Texas.

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Posted

She is meeting with an attorney next week. She's agreed to let him stay in the house for two weeks while is job notice is up, as he is probably transferring to another city (which he's wanted to do for awhile, but her job kept them where they are). She's paid him for some electronic items he bought for the house during the marriage at fair market value, even though they were community property, and, in exchange, he signed an agreement to reliquish rights to those items and vacate the house after the 2 weeks. It seems they are both past the initial anger and moving toward settling this peacefully, fingers crossed. Thanks for the excellent advice.

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