Question:
My wife took $40,000 out of my bank account and bought a house without my knowledge. She agrees to sign the house we lived in together over to me, and we are agreeable on what belongs to each other, should I do something to protect myself?
Answer:
Texas is a community property state. Community property consists of the “property, other than separate property, acquired by either spouse during marriage.” Tex. Fam. Code § 3.002. Separate property is defined as the property owned or claimed by the spouse before marriage, the property acquired by the spouse during marriage by gift, devise, or descent, or the recovery for personal injuries sustained by the spouse during marriage, except any recovery for medical expenses and loss of earning capacity during marriage. Tex. Fam. Code § 3.001.
It is unclear from your question, whether the $40,000 taken from your account was your separate property or whether it was community property. If you had the money prior to marriage or if it was given to you as inheritance or a gift during the marriage, then it is likely your separate property. If it was your separate property that your wife purchased the home with, upon divorce, you will have a claim for reimbursement of the $40,000, against the community estate, plus a right to one-half of the home you currently live in.
On the other hand, if it was money you earned during the marriage, you will still have a claim to one-half of the $40,000, or one-half of the real property she purchased with the money, plus one-half of the value of the home you currently reside in.
Since from your question, I cannot tell the value of the home you now live in and the value of the home your wife purchased, I cannot advise you as to whether accepting her offer regarding the division of the two homes is a fair and equitable settlement.
What I can tell you, is that if you have not yet filed for divorce; there will be little the Courts can do to stop your wife from taking more money out of your account. Upon filing for divorce in some counties in Texas a Standing Order goes into effect, which would prohibit your wife from acting in the manner that she has previously acted, by purchasing and/or selling real estate, etc.
Or if you are in a county that does not have a standing order, you can request a temporary restraining order. Additionally, regardless of whether there is a Standing Order, you can always request a temporary orders hearing, where the Court can temporarily award you and your wife certain property, such as the home you now live in. At the hearing you can ask the court and the court can award you temporary and exclusive use of the marital residence you now live in.
In the event that you are awarded the home you now live in upon divorce, you will need certain transfer documents, transferring the property from your wife to you. Your Wife will need to execute out a Special Warranty Deed and you will need to sign a Deed of Trust to Secure Assumption and file both with the County Recorder. This acts to transfer the property from your wife to you.
Since I do not know the specifics of your situation, I cannot advise you on how to best protect yourself in this current situation. For more information please contact a Texas Family Law Attorney. Thank you for submitting you question Please be advised that my answering of this question does not constitute an attorney-client relationship.
To schedule an appointment with a Cordell & Cordell attorney, including Jennifer Hankinson, an attorney in the Dallas, Texas, office of Cordell & Cordell, please contact Cordell & Cordell.
