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Who Gets the House During Divorce?

Legal division of property

When going through a divorce, you will have many concerns. One of the biggest problems may be whether you will be able to remain in your home. The marital home is often the highest-valued asset a couple owns. It also holds a lot of sentimental value, particularly if the couple purchased the home together and raised their children there. What happens to the marital home during divorce will depend on many factors and like all other aspects of divorce, is governed by certain laws.

Texas is a Community Property State

Property division issues in Texas divorces are governed by community property law. Generally speaking, this means that all marital property is considered to be owned equally by both spouses. Essentially, each spouse has the right to half of all marital property. Marital property includes any assets and liabilities acquired by the couple during the marriage.

Under the law, some property is fairly easy to divide. For example, a bank account can be divided in half fairly easy. Other property though, such as real estate, can be more complicated to divide.

Determining if the Home is Marital Property

Sometimes, it is very easy to determine whether a marital home is considered community property. For example, if one spouse purchased the home on their own before the marriage, it is considered separate property and the spouse who purchased the home will keep it as their separate property. The matter of whether a marital home is considered community property though, can become much more complicated.

For example, if the home was purchased during the marriage but only one spouse’s name was on the deed, the property will likely still be considered community property. This is because any property purchased during the marriage is considered marital property. On the other hand, if the home was considered separate property and refinanced in both spouse’s names, there could be an argument that it is marital property. A Houston divorce lawyer can advise on this complicated matter.

How is a Home Divided During Divorce?

Assuming that the home is considered marital property and therefore, subject to community property law, there are different ways to divide it. These are as follows:

The couple can agree that one spouse will remain in the home and take on the equity and debt associated with the property.
The couple can agree that one spouse will keep the home and buy the other spouse out of their half.
The couple can agree that one spouse keeps the home and relinquishes other property of equal value during property division matters.

When the couple cannot reach an agreement, a judge may order them to sell the home and divide the proceeds.

Considerations Before Keeping the Family Home

Many people want to fight for the family home because of its large value, both monetary and sentimental. However, before deciding whether you want to fight for this marital asset or not, it is important to keep certain considerations in mind. These are as follows:

The cost: Most decisions about whether or not to keep the family home come down to money. During the marriage, there were likely two incomes contributing to the mortgage, the upkeep on the home, property taxes, insurance, and all other costs of homeownership. After the divorce, you will only have one income to cover all of these costs. Even if you receive child support or spousal support, it may not be enough to cover the cost.
Mortgage eligibility: When one spouse keeps the family home after the divorce, they have to refinance the mortgage so it is in their name alone. Refinancing a mortgage is essentially eliminating the old mortgage and replacing it with a new one. Not everyone qualifies for a mortgage, so it is important to know if the lender will refinance the loan in your name alone.
Painful reminders: There is a lot of sentimental value inside family homes, but it is important to remember that not all memories are good. You may find that the home now brings back painful memories of the end of your marriage, or of domestic abuse. When this is the case, it is usually best to relinquish the home and move on with a fresh start.

Our Divorce Lawyers in Houston Can Help with Your Property Division Issues

If you are getting a divorce and are worried about what will happen to your home, our Houston divorce lawyers can provide the sound legal advice you need. At Ramos Law Group, PLLC, our seasoned attorneys will outline your options and help you make the best decision possible. Call us today at 713-225-6200 or contact us online to schedule a consultation.