8.16 Husband And Wife

8.16.1

In General

A married person holding title or an interest in real property may be required to obtain the joinder of the other spouse. Any disabilities or restrictions are of constitutional and statutory origin such as:

  • Community property rights.
  • Conveyances between spouses.
  • Divorces.
  • Homestead rights.
  • Joint tenancies between husband and wife.
  • Transaction in fraud of the community estate.
  • Rights of surviving spouses under estates codes.

In regard to title insurance, the safest rule of practice is to assume that the JOINDER OR CONSENT OF THE OTHER SPOUSE IS NECESSARY, without approval of a Texas Underwriter.

8.16.2

2011 Legislation Affecting Rights of Spouses

H.B. No. 901 relating to spousal maintenance.  Effective date is September 1, 2011 This bill deals with Sections 8.051 and 8.052, Family Code, about a court approving spousal maintenance in a divorce case.  Section 8.059 (b) provides that a court can impose a judicial lien to collect any such lien.  

What you need to do:  If presented with a divorce decree wherein spousal maintenance is provided, you should determine 1.  if the period to collect such amounts has passed and 2. if not passed, it is a good practice to require proof that such payments are current and the former spouse claims no separate interest in the property to secure such payments. 

HB 908:  Deals with fraud on the community estate. Effective date is September 1, 2011  Sec. 7.009.  FRAUD ON THE COMMUNITY; DIVISION AND DISPOSITION OF RECONSTITUTED ESTATE. (a) In this section, "reconstituted estate" means the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred.(b)   If the trier of fact determines that a spouse has committed actual or constructive fraud on the community, the court shall:(1)   calculate the value by which the community estate was depleted as a result of the fraud on the community and calculate the amount of the reconstituted estate; and(2)   divide the value of the reconstituted estate between the parties in a manner the court deems just and right.(c)    In making a just and right division of the reconstituted estate under Section 7.001, the court may grant any legal or equitable relief necessary to accomplish a just and right division, including:(1)   awarding to the wronged spouse an appropriate share of the community estate remaining after the actual or constructive fraud on the community;(2)   awarding a money judgment in favor of the wronged spouse against the spouse who committed the actual or constructive fraud on the community; or(3)   awarding to the wronged spouse both a money judgment and an appropriate share of the community estate. SECTION 2.  The change in law made by this Act applies to a suit for dissolution of a marriage pending before a trial court on or filed on or after the effective date of this Act SECTION 3.  This Act took effect September 1, 2011 

What you should do:  Look for a lis pendens filed in connection with case.  If one is filed require a release.  Whether or not a lis pendens is filed, you should obtain a release of an abstract of judgment filed. It is now a good examination practice to be sure to check the docket of any final judgment less than 5 years old in a divorce case to be certain that the case has not been reopened alleging fraud on the community estate.  Also, be certain that if asked to insure a transaction where one of the parties to divorce is buying property prior to the divorce being final and non-appealable that you obtain a document signed by the other spouse that they are aware of the pending purchase and waive any claim that the purchase is a fraud on the community estate.