Who Gets the House in a Divorce in Texas?

When couples divorce, the family home is often their most significant shared asset. It’s not just a major financial investment but also an emotional symbol of the life they built together.

So who gets the house in a Texas divorce? The answer depends on several factors, including how the property is classified and what the court deems “just and right.”

Texas Is a Community Property State

Texas follows a community property system for dividing marital assets in a divorce. This means that any property acquired by either spouse during the marriage is presumed to be owned equally by both parties, regardless of who paid for it or whose name is on the title.

There are some exceptions to this rule, known as separate property, which includes:

• Assets owned by either spouse before the marriage
• Property inherited by or gifted to one spouse during the marriage
• Certain personal injury settlements received by one spouse

Separate property is not subject to division in a divorce and remains with the original owner. However, it can be difficult to prove an asset is separate property, especially if it was commingled with community funds during the marriage.

Is the House Community Property or Separate Property?

To determine who gets the house in a divorce, the first step is classifying it as either community property or separate property. Most often, if the home was purchased during the marriage using income earned during that time, it will be considered community property and subject to division.

However, there are some circumstances where a house (or a portion of its value) may be classified as separate property:

• The home was owned by one spouse prior to the marriage
• One spouse used separate funds, such as an inheritance, to purchase the home
• One spouse received the home as a gift

Even in these situations, if community funds were used to make mortgage payments, repairs, or improvements, the community estate may have a claim for reimbursement. This is known as a “community property interest” in the home.

Factors Considered in Dividing the House

If the house is classified as community property, the court has broad discretion in awarding it to one spouse or the other. Texas law requires a “just and right” division of marital assets, which may not necessarily be a 50/50 split.

When deciding who gets the house, the court will consider factors such as:

• Each spouse’s income and earning potential
• Which parent will have primary custody of the children
• The age and health of both spouses
• Any special needs of the children
• The size and condition of the home
• The ability of each spouse to obtain alternative housing
• Any misconduct by either spouse, such as domestic violence or financial fraud

Ultimately, the court’s goal is to divide the marital estate in a way that is fair and equitable based on the unique circumstances of each case.

Options for Dealing with the House in a Divorce

When it comes to the family home, divorcing couples in Texas have a few potential options:

1. Sell the house and split the proceeds. This is often the cleanest way to divide the asset and allow both parties to move on. However, it may not be ideal if the market is down, the house has little equity, or the children would benefit from staying in their current school district.
2. One spouse keeps the house and buys out the other’s share. The spouse who wants to keep the home will need to refinance the mortgage in their own name and pay their ex a lump sum or installments for their portion of the equity. This requires the keeper spouse to qualify for a new loan on a single income.
3. Defer the sale of the house. If the couple has minor children, the court may allow the custodial parent and kids to remain in the home for a set period, such as until the youngest child graduates high school. The non-occupant spouse retains their share of the home’s equity, but the sale is postponed. This is known as a “deferred sale” or “owelty of partition”.
4. Continue co-owning the house after divorce. In rare cases, ex-spouses may agree to keep joint ownership of the home, often to provide stability for the children. The couple will need to decide how to split expenses and maintain the property. This arrangement can be risky, as it requires a high degree of cooperation and leaves both parties financially entangled.

What If We Can’t Agree?

If divorcing spouses can’t agree on what to do with the house, the court will decide for them based on the factors discussed above. The judge may order the house sold, award it to one party, or create a custom solution that works for the family. If the house has little or no equity, the court could award it to the spouse who is more financially able to pay the mortgage.

To avoid leaving the decision in the court’s hands, divorcing couples should attempt to negotiate a mutually agreeable resolution with the help of their attorneys. Mediation or collaborative divorce can provide a structured forum for these discussions.

Protecting Your Property Rights in a Texas Divorce

If you’re facing a divorce in Texas, it’s important to understand your rights and options when it comes to the family home. An experienced divorce attorney can help you gather evidence to prove your separate property claims, value the community estate’s interest in the home, and advocate for a fair division of this important asset.

At the Law Office of Aimee Stritchko, our team is dedicated to helping clients navigate complex property issues in divorce. We’ll work with you to develop a strategy that protects your financial interests and secures the best possible outcome for your case. If you have questions about who gets the house in a Texas divorce, contact us today to schedule a consultation.