CHAPTER 5. HOMESTEAD RIGHTS - Texas Statutes

FAMILY CODE

TITLE 1. THE MARRIAGE RELATIONSHIP

SUBTITLE B. PROPERTY RIGHTS AND LIABILITIES

CHAPTER 5. HOMESTEAD RIGHTS

SUBCHAPTER A. SALE OF HOMESTEAD; GENERAL RULE

Sec. 5.001. SALE, CONVEYANCE, OR ENCUMBRANCE OF HOMESTEAD.

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.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 5.002. SALE OF SEPARATE HOMESTEAD AFTER SPOUSE JUDICIALLY

DECLARED INCAPACITATED. If the homestead is the separate

property of a spouse and the other spouse has been judicially

declared incapacitated by a court exercising original

jurisdiction over guardianship and other matters under Chapter

XIII, Texas Probate Code, the owner may sell, convey, or encumber

the homestead without the joinder of the other spouse.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997. Amended by Acts 2001, 77th Leg., ch. 217, Sec. 25, eff.

Sept. 1, 2001.

Sec. 5.003. SALE OF COMMUNITY HOMESTEAD AFTER SPOUSE JUDICIALLY

DECLARED INCAPACITATED. If the homestead is the community

property of the spouses and one spouse has been judicially

declared incapacitated by a court exercising original

jurisdiction over guardianship and other matters under Chapter

XIII, Texas Probate Code, the competent spouse may sell, convey,

or encumber the homestead without the joinder of the other

spouse.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997. Renumbered from Family Code Sec. 5.107 and amended by Acts

2001, 77th Leg., ch. 217, Sec. 29, eff. Sept. 1, 2001.

SUBCHAPTER B. SALE OF HOMESTEAD UNDER UNUSUAL CIRCUMSTANCES

Sec. 5.101. SALE OF SEPARATE HOMESTEAD UNDER UNUSUAL

CIRCUMSTANCES. If the homestead is the separate property of a

spouse, that spouse may file a sworn petition that gives a

description of the property, states the facts that make it

desirable for the spouse to sell, convey, or encumber the

homestead without the joinder of the other spouse, and alleges

that the other spouse:

(1) has disappeared and that the location of the spouse remains

unknown to the petitioning spouse;

(2) has permanently abandoned the homestead and the petitioning

spouse;

(3) has permanently abandoned the homestead and the spouses are

permanently separated; or

(4) has been reported by an executive department of the United

States to be a prisoner of war or missing on public service of

the United States.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997. Amended by Acts 2001, 77th Leg., ch. 217, Sec. 26, eff.

Sept. 1, 2001.

Sec. 5.102. SALE OF COMMUNITY HOMESTEAD UNDER UNUSUAL

CIRCUMSTANCES. If the homestead is the community property of the

spouses, one spouse may file a sworn petition that gives a

description of the property, states the facts that make it

desirable for the petitioning spouse to sell, convey, or encumber

the homestead without the joinder of the other spouse, and

alleges that the other spouse:

(1) has disappeared and that the location of the spouse remains

unknown to the petitioning spouse;

(2) has permanently abandoned the homestead and the petitioning

spouse;

(3) has permanently abandoned the homestead and the spouses are

permanently separated; or

(4) has been reported by an executive department of the United

States to be a prisoner of war or missing on public service of

the United States.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997. Amended by Acts 2001, 77th Leg., ch. 217, Sec. 27, eff.

Sept. 1, 2001.

Sec. 5.103. TIME FOR FILING PETITION. The petitioning spouse

may file the petition in a court of the county in which any

portion of the property is located not earlier than the 60th day

after the date of the occurrence of an event described by

Sections 5.101(1)-(3) and 5.102(1)-(3) or not less than six

months after the date the other spouse has been reported to be a

prisoner of war or missing on public service.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997. Amended by Acts 2001, 77th Leg., ch. 217, Sec. 28, eff.

Sept. 1, 2001.

Sec. 5.104. APPOINTMENT OF ATTORNEY. (a) Except as provided by

Subsection (b), the court may appoint an attorney in a suit filed

under this subchapter for the respondent.

(b) The court shall appoint an attorney in a suit filed under

this subchapter for a respondent reported to be a prisoner of war

or missing on public service.

(c) The court shall allow a reasonable fee for the appointed

attorney's services as a part of the costs of the suit.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 5.105. CITATION; NOTICE OF HEARING. Citation and notice of

hearing for a suit filed as provided by this subchapter shall be

issued and served in the manner provided in Subchapter D, Chapter

3.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 5.106. COURT ORDER. (a) After notice and hearing, the

court shall render an order the court deems just and equitable

with respect to the sale, conveyance, or encumbrance of a

separate property homestead.

(b) After hearing the evidence, the court, on terms the court

deems just and equitable, shall render an order describing or

defining the community property at issue that will be subject to

the management, control, and disposition of each spouse during

marriage.

(c) The court may:

(1) impose any conditions and restrictions the court deems

necessary to protect the rights of the respondent;

(2) require a bond conditioned on the faithful administration of

the property; and

(3) require payment to the registry of the court of all or a

portion of the proceeds of the sale of the property to be

disbursed in accordance with the court's further directions.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.

Sec. 5.108. REMEDIES AND POWERS CUMULATIVE. The remedies and

the powers of a spouse provided by this subchapter are cumulative

of the other rights, powers, and remedies afforded the spouses by

law.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,

1997.