If not for the specter of drunken and worthless husbands in Texas bringing their wives to want and poverty, we would not have constitutional homestead protection.
That’s the backstory to the Texas Constitutional section that makes Texas homestead protections among the broadest in the country. Let’s focus on one protection that consistently catches people by surprise: joinder.
What is Joinder?
Under the law of joinder, one spouse cannot sell, convey, or encumber the family homestead without the joinder of the other spouse. This prohibition applies to both community and separate property.
How Joinder Works
You and your spouse own and live in a house that is your family homestead. You want to add a pool. Your spouse does not. Unfortunately, you cannot pay cash and will need to take out a loan secured by the house to build the pool.
Good luck with that. Because of homestead laws, you cannot pledge your house as collateral without your spouse’s joinder. No collateral means no loan and no loan means no pool.
That, you think, is understandable. You reason that the homestead is community property, and both of you should agree before it can be pledged as collateral. Unfortunately, you are only partially right. To see why, let’s look at the next example.
Family Homestead Protections in Action
Home Loans for the Homestead
You own the house before you get married. It is only in your name. It is your separate property. After you are married, you want to put in a new pool. Your spouse does not want a pool. To your surprise, the lender will not loan you money unless your spouse signs off on the deed of trust pledging your property as collateral.
Wait – why is that? It is your separate property, you are signing the loan, and your spouse should have nothing to do with it, right? Wrong – remember the drunken and worthless husband rule. Texas homestead law is clear – a homestead cannot be encumbered without the joinder of both spouses. Whether the house is owned by one or both of you is irrelevant. The protections arise because the property is a family homestead. The same rule applies to the sale of the homestead. Let’s see how that looks.
Selling the Family Homestead
You own the house before marriage, and you and your spouse live in it after marriage. It is your family homestead. You have a fight with your spouse that results in your spouse temporarily moving out. You then list your homestead for sale. The title company refuses to allow you to sell it unless your spouse joins in the sale.
Surely that can’t be right? Oh, but it is. Homestead law requires the joinder of your spouse in the sale.
Determining a Valid Joinder
Silence, by the way, does not constitute a valid joinder. Consider this Texas case. Gerald married Wanda and moved into her house. Fourteen years later, Wanda deeded her house to her daughter from a previous marriage. Gerald said nothing. After Wanda moved into a nursing home, her daughter tried to evict Gerald. The daughter lost. Gerald’s silence was not a joinder in the deed.
Avoiding the Joinder Requirement
There are 2 circumstances where you can avoid the joinder requirement.
- The first is when your spouse has been judicially declared incapacitated by a court with original guardianship jurisdiction.
- The second happens when a court has found that your spouse has disappeared, permanently abandoned you and the homestead, or is a POW.
If either of those occurs, then you can sell, convey, or encumber the homestead without the joinder of your spouse.
Hammerle Finley Law Firm is Here to Help With Your Homestead
You just don’t mess around with Texas homesteads. Our experienced attorneys can help you navigate the complicated ins and outs of the joinder process. Contact the experts at Hammerle Finley Law Firm today.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
