Going through a divorce is rated as one of the most stressful life events a person can face, especially with the challenges of child custody and property division. Property decisions can be extremely emotional and have a significant financial impact on couples. Several factors come into play in determining what happens with the home, including credit rating, equity in the home, and how the home or property was financed and titled. The outcome depends on Texas law as well as any agreements you and your spouse reach.
Understanding Texas Law In Regards to Property Division
It is necessary to have a proper understanding of what the Texas law says for one to know who is entitled to the house in a divorce case. Under Texas Family Code Chapter 7, Texas follows community property laws, meaning all marital property must be divided in an “equitable” manner. The division of the family home depends on the unique details of your divorce, particularly if the union produced children. This rule applies to any property bought during the marriage and while the divorce is pending.
Who gets the house in a Texas divorce depends on whether the house is community property or separate property. In many divorces, the answer is “both of you,” but that’s not always the case.
What Is Community Property?
Community property is any property you and your spouse acquired together during your marriage. In most cases, regardless of the name on the deed, a house is considered community property if you and/or your spouse purchased it while you were married.
What Is Separate Property?
Separate property includes property you owned prior to marriage and any gifts you received while married, including inheritances. If you can prove that something is separate property, you keep it. It’s not subject to the division of assets in the divorce.
Who Gets the House in a Divorce in Texas if it’s Community Property?
In most marriages, spouses purchase a house together, the house will be part of the pool of community property that needs to be divided up. But in a Texas divorce, who gets the house will depend on the agreement you can work out with your spouse or on a judge’s ruling. However, the court tends to want to keep the children in the home they already live in so as not to disrupt their lives during divorce. If one parent has custody of the children more than the other, he or she has a better chance of being the one who keeps the house, while granting the other spouse additional assets to balance the division. Alternatively, the court might order the spouse receiving the house to buy out the other, potentially using a lien on the property to secure the payment.
However, in some situations, keeping the house is not feasible. If neither spouse can afford to retain it or an equitable buyout isn’t possible, the judge may order the home to be sold, with the proceeds divided accordingly. If an agreement cannot be reached and a judge must divide your community property, they will consider several factors, including:
- Each spouse’s income and financial stability
- Their respective skills and earning capacities
- Individual needs and circumstances
- The role of fault in the divorce
- The benefits the non-fault spouse would have received had the marriage continued
- Physical and mental health
- Age and educational background
- The nature of the property
- Child custody arrangements
Selling the Marital Home
There’s another option in the decision of who gets the house in a divorce in Texas, especially if there is no child involved. Almost any judge in the state of Texas will agree that selling a marital home and dividing the proceeds is one of the easiest ways to deal with marital property. This tends to be a popular choice when couples are dealing with Texas divorce and home ownership since it gives both individuals a fresh start. It’s also a good choice if neither of them can afford the house payments after the divorce.
However, in a case where one of the couple still desires to keep the house and the other doesn’t mind, he will need to buy the spouse out of the mortgage. This means the equity will be split with him or her. Also, in an attempt to keep the division of assets fair, the court might award the other spouse another property.
Also, awarding the other spouse some or all of your retirement account, or a vehicle you own together, might make him or her more likely to agree to let you keep the house. Once the divorce is final, you will have to refinance the home so that it’s in your name only.
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In Conclusion
When it comes to the topic of divorce and mortgage payments, substantial legal issues may arise. An experienced Texas divorce attorney at the Law Office Of Udo Ezeamama will provide the legal guidance and support necessary to help you understand your legal options. Consider scheduling a consultation with one of our compassionate and experienced Texas divorce attorneys today.