Community Property Problem

What is the name of your state?What is the name of your state? Texas

Per our temporary orders my ex has use of the house until the settlement of the divorce. We purchased the home prior to our marriage. The mortgage is to us individually as single people and I am listed under my maiden name. I still have seperate property in the home that he is denying me. He will not let me in the home claiming that he has exclusive rights to it and that if I enter he will have me arrested for trespassing. Can he do this? Can I force him to sell the home now, prior to the divorce since it is not a product of the marriage? Can I get my belongings and my son's belongings out of the house prior to the divorce? The divorce is extremely adversarial and we are going to be engaged in a custody battle of a joint child (I have 2 the oldest isn't his and is with me, the younges he has). This has already been going on for 9 months and probably will continue for at least another 6 months. I'm concerned about my property (some of which consists of family heirlooms), and my older son would really enjoy having the rest of his toys. Do I have to wait until this thing is over? Do I have to have an attorney to do anything about it?

Depending on how the temporary order is worded you can get various answers. HOWEVER, depending on the deed to the house and how both names (if at all) are listed, you have other options.

So, putting aside the issue of divorce for now, come back with more details on the deed (not MORTGAGE) of the home.

Separate Property

The deed is listed as "my maiden name, a single person & his name, a single person". It was purchased 1 1/2 months before we were married.

and what does the temporary order state as to the home besides possession? Is there a clause somewhere in there as to property distribution saved for a later date?

No, the temporary orders do not state anything about any future division. Just that he has temporary exclusive rights to home and all it's contents.

And of course you have an attorney with which you can discuss PARTITION against the soon-to-be ex right? (That's a hint).

No attorney. I'm in that lovely situation where I make too much $$ to qualify for legal aid, but am struggeling to pay my bills. When the divorce started out it was amicable and I had an attorney agree to do the divorce and take payment from my portion of the equity upon settlement of the divorce. Once the divorce turned adversarial he withdrew. Since then I have been slowly saving $$ for a new attorney, but it will take me several months to come up with it. What is PARTITION????

Partition is the process whereby a property is either sold or split according to ownership interest and the desire of the moving party and any proceeds (equity) is divided as to the percentage of ownership interest.

In other words, unless the court has allowed your soon-to-be ex sole legal ownership of the home (and this will not happen until the divorce is granted) you are still an owner with all rights and priviledges.

Go see a real estate attorney for a free consultation. You need to know the timing on the PARTITION action in conjunction with the divorce.

It MAY be that the two can happen either concurrently (at the same time) or that you can begin partition before the divorce, regardless of existing temporary orders.

If the house could be sold NOW, that would be awesome. That would provide me with the funds neccesary for a new divorce attorney! Thank you so much!! Hope is fundamental.

Go see a Real Estate attorney NOW and if he/she has a reference to a divorce attorney then all the better. Then you could file a joinder petition along with the divorce requiring the partition of the property.

but do get LOCAL legal advice for your exact situation.

Ok. What's a "joinder petition"? Also when you say "local" attorney should it be local to where I live now, or to one that is where the house is? I now live about 700 miles from the house and the ex.

Where the Original petition was filed (divorce) and a joinder petition is simply combining the two (divorce and partition) into one action.

Ok, gotcha. I will start calling real estate attorneys today. Thanks Again!