concurring.
I agree with the court that “a judgment awarded to one spouse cannot be secured by a lien on the other spouse’s separate property” when the lien is to secure a “just and right” division under Tex.Fam.Code § 3.63.1 However, I am concerned that the court also chooses to write on the invalidity of the equitable lien on the basis of the homestead character of Mrs. Heggen’s separate property; it is in the course of unnecessarily writing on the homestead character of Mrs. Heggen’s property that the court injects uncertainty into the authority of a trial court to impose equitable liens to secure a just and right division of the community estate upon divorce. Because of this concern, I concur only in the court’s judgment.
While the court’s opinion does not expressly hold that the trial court has no authority to impress equitable liens to secure a division of the community estate on divorce, the court’s language does appear to limit the types of liens on homestead to only those specified in Tex.Const. art. XVI, § 50 (purchase money, tax and improvement liens). If the court intends its expansive holding to be taken as literally true, however, it fails to consider a trial judge’s authority to partition and order sold the *149community property residence upon divorce. This power cannot be reconciled with the court’s opinion unless, of course, the homestead rights of the spouses are modified or extinguished by operation of law in a manner not specifically addressed by the Texas Constitution, or the court’s opinion. By failing to analyze the effect of divorce on the homestead rights of the former spouses, the court’s opinion potentially adds unnecessary confusion to this important area of our law.
A more complete delineation of the interplay of the homestead right and its alteration upon divorce must wait for another day. But I have the following concerns that the court does not purport to address and which, I believe, will eventually result in a recantation of a substantial portion of the court’s opinion in a future case.
We have long recognized the power of the trial court upon divorce to order a community property residence, claimed by the spouses as their homestead, sold and the proceeds partitioned between the spouses in effecting a just and right division of the community estate, notwithstanding the constitutional prohibition against the forced sale of a homestead. Kirkwood v. Domnan, 80 Tex. 645, 648, 16 S.W. 428, 429 (1891). We have also acknowledged the power of the trial court upon divorce to award the use of the family’s former house to the spouse who is awarded custody of the minor children, even where title to the property is held by the other spouse. Hedtke v. Hedtke, 112 Tex. 404, 410-411, 248 S.W. 21, 28 (1923) (awarding use of residence for the natural life of former wife); see Tex.Fam.Code § 3.63.
Recently, we also affirmed the trial court’s power to conditionally partition a community property house impressed with a homestead claim in Laster v. First Huntsville Properties Co., 826 S.W.2d 125 (Tex.1991). In Laster, the trial court granted the former husband a 26.17 percent interest in the community estate and granted the former wife the remaining interest including possession of the family house until one of the following conditions specified by the decree occurred: (1) the minor children of the marriage reached majority or were no longer in school; (2) such time as she ceased to maintain mortgage payments or the property; or (3) she vacated the property for more than three years. Upon the occurrence of any one of these conditions the house was to be sold and partitioned in accordance with the decree.
After Mr. Laster defaulted on a promissory note he had executed in favor of First Huntsville Property Company and after the youngest child of the marriage had turned eighteen years of age, the mortgagor sought to foreclose on that interest in the house granted to Mr. Laster in the divorce decree, which Mr. Laster had given as security for the note. The former Mrs. Laster resisted the sale, claiming homestead rights in the entire property and that, as a result, the mortgage was void and thus the house protected from forced sale.
In rejecting Mrs. Laster’s contentions that her homestead claim protected the entire property from forced sale, we held that a homestead right cannot arise absent a present possessory interest in the house. Thus, a former spouse not in possession has no homestead rights in the property. As a result, Mr. Laster was free to mortgage his future interest in the house and the lien securing First Huntsville’s mortgage was not rendered invalid by the former spouse’s homestead claim.
More to the point here, we also decided in Laster that the mortgage was valid notwithstanding the property’s homestead character before divorce, or the former spouse’s homestead claim in the entire property after divorce. Thus, we determined that the former wife’s homestead right did not reach the entire property, but only her proportional interest. Presumably, had Mr. Laster sought to force a sale based on an equitable lien in his proportional interest, he could have done so once he had shown that his former wife no longer had a right to present possession of the house under the divorce decree.
I submit that a homestead right, whatever its parameters under these circumstances, necessarily yields to the trial *150court’s power to conditionally partition community property on divorce. This is true even though the homestead claim of a former spouse in possession would defeat the unsecured claims of third party creditors. I would conclude, then, that the trial court has the power to impose an equitable lien on the interest awarded to the spouse in possession to secure a just and right division of the spouses’ community estate. While the court does not specifically hold otherwise, a reader might reasonably conclude that an equitable lien is prohibited because such a lien is not one of those specifically mentioned in the Texas Constitution.
In sum, what renders the court’s opinion problematic is that it does not account for the nature of the homestead right and what happens to that right on divorce. Part of any analysis of the impact of divorce on the homestead right needs to consider the 1973 amendment to article XVI, section 50, of the Texas Constitution, which created a homestead right for single adults. Additionally, such analysis should explore how or in whom the homestead right vests since the 1973 amendment, or the consequences, if any, of a conversion of a “family” homestead into an “individual” homestead. See Tex.Const. art. XVI, § 50.
We have previously held that the Texas homestead right constitutes an estate in land that protects constituent members of a family remaining in the home after divorce. Woods v. Alvarado State Bank, 118 Tex. 586, 590-94, 19 S.W.2d 35, 35-37 (1929). But as we have seen, the homestead right extends only to the proportional interest of a former spouse with a present right of possession. Laster, 826 S.W.2d at 129. What is missing from the calculus is some as yet unexplained power of the trial court to limit or indeed, eliminate, a former spouse’s homestead right upon divorce.2 None of the cases that have addressed the impact of a divorce on homestead rights have considered this issue or whether the 1973 grant of single adult homestead rights would modify the prior treatment of this subject by this and other Texas courts. See, e.g., U.S. v. Rodgers, 461 U.S. 677, 685 n. 10, 103 S.Ct. 2132, 2138 n. 10, 76 L.Ed.2d 236 (1983) (homestead character of property is not destroyed by divorce if one of the parties to the divorce continues to maintain the property as a homestead); Burk Royalty Co. v. Riley, 475 S.W.2d 566, 568 (Tex.1972) (a homestead right is presumed to continue following divorce if the existence of the homestead is initially proved by the claimant); Eggemeyer v. Eggemeyer, 623 S.W.2d 462, 465 (Tex.Civ.App.1981, writ dism’d), on remand from, 554 S.W.2d 137 (Tex.1977) (presumption exists that the homestead continues in the absence of evidence to the contrary; claimant intended the homestead to continue, notwithstanding divorce); Day v. Day, 610 S.W.2d 195, 198 (Tex.App.—Tyler 1980, writ ref’d n.r.e.) (citing Burk Royalty, 475 S.W.2d 566 (Tex.1972)) (former husband’s designation of continued homestead after divorce did not defeat W’s equitable lien claim because “absent proof of its existence, a homestead cannot be presumed to stand after divorce.”); Wierzchula v. Wierzchula, 623 S.W.2d 730, 732 (Tex.App.—Houston [1st Dist.] 1981, no writ) (homestead character of property is not destroyed by divorce if one of the parties to the divorce continues to maintain the property as a homestead). *151I do not propose that the court necessarily answer each of the questions raised by this concurrence. I do, however, want to demonstrate the danger of overbreadth in the court’s writing.
For the foregoing reasons, I concur only in the court’s judgment.
COOK, J., joins in this concurring opinion.
. The court implicitly overrules Barber v. Barber where the Fort Worth Court of Appeals found that equitable liens used to secure a right of reimbursement for improvements were unconstitutional, citing Tex.Const. art. XVI, § 50. 223 S.W. 866, 867 (Tex.Civ.App.—Fort Worth 1920, writ dism’d).
. Does the trial court have the power to "extend" family homestead rights in a former spouse by awarding minor children and homestead possession, while terminating the other former spouse's homestead rights? This is not the type of relinquishment contemplated under the constitution; constitutional homestead rights are only abdicated on death or abandonment. See Tex.Const. art. XVI, § 52. If the family homestead is "extended” in the former spouse in possession and relates back to the time of creation, see Renaldo v. Bank of San Antonio, 630 S.W.2d 638, 639 (Tex.1982), what impact does the trial court’s division of the community property have on the non-possesso-ry spouse’s homestead right? Since the creation of single adult homestead rights, does the family homestead terminate on divorce and become transmuted into the single adult homestead? Under Laster, the trial court’s power to award or deny possession appears to vest the court with the power to determine who can claim a homestead right. Thus, the trial court could potentially award a former spouse the use of the other spouse's separate property, such that the non-possessory spouse’s interest would be denied the benefit of homestead protection and thus be subject to creditor’s liens.