by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

HOMESTEAD; PARTITION: An ex-spouse's homestead interest in the former family home, to which the other ex-spouse is entitled to exclusive possession until remarriage pursuant to the terms of the divorce settlement agreement, is merely suspended during such period and is revived upon the other ex-spouse's remarriage. Patterson v. First Nat. Bank, 921 S.W.2d 240 (Tex. App.--Houston [14th Dist.] 1996).

Accordingly, the ex-wife, who had not moved out of the house despite her remarriage (and divorce and subsequent third remarriage), could raise her ex-husband's homestead interest as a defense to a partition action by her ex-husband's judgment creditor. The judgment creditor failed to proffer evidence to overcome the presumption that the ex-husband had abandoned or voluntarily conveyed his homestead interest. The ex-husband's temporary loss of use of the premises had not been "voluntary."

The court points out that a the ex-husband's children, for whom he provided support (but did not have custody powers) resided in the house, and that there was merit in permitting him to raise homestead as protection for them. It is not clear that the court would have reached a different conclusion, however, if the children had grown or there were no children.

Comment 1: The dramatic consequence of a homestead declaration in Texas is that all of the property constituting the homestead is exempt, regardless of value.

Comment 2: Is it accurate to say that the husband did not voluntarily surrender his occuancy rights? In most divorce settlements, there is "give and take" and the ex-husband might well have received something, such as reduction in support obligations or some other benefit, in exchange for the arrangement regarding the home.

Comment 3: Even if the original loss of residency was not "voluntary," the wife has remarried twice since then, and the husband clearly had the right to partition the property. It does seem bizarre that the property can still be regarded as husband's homestead under these circumstances.

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