Divorce When the San Antonio Marital Home Is Already Under Contract

It is not unusual for a divorce to begin at the worst possible moment for a real estate transaction already in motion. Maybe the marital home was already listed and under contract to a buyer. Maybe you and your spouse had just signed a contract on a new house, or a builder’s agreement for new construction, when one of you filed. Real Estate & Marital Home Division questions don’t pause for a pending closing, and Bexar County’s automatic standing order attaches the moment a divorce petition is filed — which means the timing of your contract relative to your filing date matters more than most people realize.

The Standing Order Takes Effect the Instant the Petition Is Filed

Bexar County is one of the Texas counties where a standing order attaches automatically to every divorce petition and every suit affecting the parent-child relationship — no separate request or hearing is required. The Bexar County Civil District Courts’ Standing Order Regarding Children, Property, and Conduct of the Parties is filed with the original petition, and one of its central purposes is to preserve the parties’ property while the case is pending. In practice, this generally restrains both spouses from selling, transferring, encumbering, or otherwise disposing of property — including real estate — without the other spouse’s written agreement or a court order permitting it.

That timing detail is exactly why the point at which your contract was signed relative to your filing date matters. A contract signed and fully executed before the petition was filed is a different legal question than a new listing agreement or purchase contract signed afterward.

If the Marital Home Was Already Under Contract to Sell

If you had a signed, binding contract to sell the marital home before the divorce was filed, that contract is generally treated as an existing obligation of the marital estate rather than a new transaction the standing order is designed to block. Courts and standing orders typically distinguish between winding down a transaction that was already underway and initiating a new one after the case begins. That said, “generally” is doing real work in that sentence — the specifics of your contract, whether both spouses are signatories, and whether your spouse now objects to closing can all complicate what looks straightforward on paper.

If your spouse is refusing to cooperate with a closing that was already in motion before the filing — refusing to sign closing documents, for example — that is a different problem than the one this page addresses. Our companion guide, “Stopping a House Sale During a San Antonio Divorce,” covers the TRO and standing order tools available in that kind of dispute, and a hearing for temporary orders may be needed to compel cooperation with a transaction that predates the divorce.

If You Were Already Under Contract to Buy a New Home

This is the harder scenario, and one people often don’t think to ask about until they’re already in it. If you and your spouse (or even just one of you) signed a contract to purchase a new home — whether a resale property or a new-construction builder’s contract — before the divorce was filed, that contract doesn’t go away just because a petition gets filed. You are still contractually obligated to the seller or builder.

Completing that purchase means taking on a new mortgage and a new asset while the divorce is pending, which raises two separate issues: whether the standing order permits it, and whether it makes financial and strategic sense given what’s still being negotiated in the divorce itself. New-construction contracts carry a particular risk: backing out of a builder’s contract after the earnest money and any option fees have been paid can mean forfeiting that money entirely, on top of walking away from the home itself.

Neither outcome is automatic. Whether a Bexar County court will permit an in-process purchase to close — and on what terms, such as whose name goes on the new mortgage and how the new asset gets characterized — depends on the specifics of your case, including how close the transaction was to closing when the petition was filed and whether your spouse consents.

Why Timing Also Matters for Capital Gains Tax on the Marital Home

Separate from the standing order issue, timing a home sale relative to your divorce’s finalization can have a real effect on federal capital gains tax exposure. Under IRC Section 121, a qualifying home sale allows an exclusion of up to $250,000 in gain for a single filer, or up to $500,000 for a married couple filing a joint return, provided the ownership and use tests are met.

If the marital home is sold and closes before the divorce is final, a couple who still qualifies to file jointly for that tax year may be able to claim the full $500,000 exclusion. Sell after the decree is signed and you file as a single person, and the exclusion drops to $250,000 individually — which can matter considerably on a home with significant appreciation, particularly in San Antonio neighborhoods that have seen substantial price growth in recent years.

One detail that’s easy to miss: if one spouse moves out of the home before the sale but the other spouse continues living there under the terms of the divorce decree or a separation agreement, the departed spouse can generally still count that time toward their own use test under Section 121. In other words, moving out doesn’t automatically forfeit your exclusion eligibility, as long as the decree or agreement documents the arrangement.

This is federal tax law, not a matter our firm decides — the right sequencing for your specific sale depends on your numbers, your timeline, and your CPA’s read on your situation. We routinely coordinate with tax professionals on exactly this kind of timing question as part of a broader property division strategy.

What This Means for Your Bexar County Divorce

If a real estate transaction was already in motion when your divorce started, the practical steps are usually the same regardless of which side of the contract you’re on:

• Tell your attorney about the contract immediately — before your first temporary orders hearing, if possible, so it can be addressed directly rather than discovered later
• Get a copy of the standing order attached to your petition and read the property section carefully
• If your spouse’s cooperation is required to close (signing documents, providing information to a lender), address that need explicitly, in writing, rather than assuming it will happen
• If you’re the one under contract to buy, loop in your lender early — a pending divorce can affect loan qualification and a lender may have questions about the timing that are easier to answer proactively

Frequently Asked Questions

Q: I signed a contract to sell our house the week before I filed for divorce. Can I still close?
A: Generally, yes — a contract that predates the filing is typically treated as an existing obligation rather than a new transaction, but your spouse’s continued cooperation may still be needed depending on how the contract and title are structured. Talk to your attorney about your specific closing timeline as soon as possible.

Q: My spouse and I were under contract on a new construction home when one of us filed. Can we still close on it?
A: It depends on the specifics — how far along the contract was, whether both spouses consent, and what a judge determines about whether completing the purchase serves or complicates the property division. This is not a question with a universal yes or no answer; it requires looking at your standing order and your particular contract.

Q: What happens to my earnest money if I have to walk away from a home purchase because of the divorce?
A: This depends entirely on your specific purchase contract and, for new construction, the builder’s agreement. Some earnest money and option fees are non-refundable once paid. Review your contract’s specific forfeiture terms with your attorney before deciding whether to proceed or withdraw.

Q: Does it matter whether I sell the house before or after my divorce is final for tax purposes?
A: It can. Selling while you can still file jointly may preserve a larger capital gains exclusion under federal tax law than selling afterward as a single filer. The right answer depends on your home’s appreciation and your overall financial picture — this is a conversation to have with both your attorney and a tax professional before any decision is made.

Q: Can I get in trouble for closing on a home sale without telling my spouse first?
A: If a standing order or restraining order is in effect, disposing of property without your spouse’s written agreement or a court order can be treated as a violation, even if the transaction seems routine to you. Always confirm with your attorney before proceeding with any closing after a divorce has been filed.

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Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000

Division: Family Law San Antonio
Practice Area: Property & Debt Division
Focus Area: Real Estate & Marital Home Division