Who gets the house in a divorce in Texas? The answer is complicated.
Texas is a community property state, so houses fall into one of the two following camps:
- Community: The property was purchased during the marriage.
- Separate: The house was one person’s property before the wedding day, or it was inherited during the marriage.
If your house is community property, courts are required to make a “just and right” division while considering the needs of the partners and the children they share. That could mean giving the home (and its debt) to the person with custody of the children. It could also mean requiring parties to sell the house and split the proceeds, especially if the people can’t agree and don’t share children.
Let’s dig deeper.
Texas is a community property state
Texas is a community property state. What does this mean?
It means that both spouses equally own the assets and liabilities acquired during the marriage. Among these assets is the marital home.
A home considered community property typically has the following characteristics:
- It was purchased after the wedding day.
- It wasn’t inherited or gifted to one person.
- One or both spouse’s names are on the deed or mortgage (but both names aren’t required).
The community property laws in Texas dictate that everything acquired during a marriage is community property unless one person can prove, or both parties agree, that it’s separate property. A home like this could be a gift, part of a lawsuit settlement, or part of one person’s estate before they got married.
A home considered community property must be split equitably during divorce, but that doesn’t always mean 50/50.
The court may determine that it would be unfair for one party to receive exclusive ownership of the marital home. If one person has a bigger salary than the other, the poorer spouse might struggle to buy a new home. A judge could rule accordingly.
If one person committed financial fraud during the marriage, or one side can prove the other engaged in an extramarital affair, the court could offer the wounded spouse a larger share of the family’s estate, including the house. The court may also order that one spouse buy out the other's interest in the home or require them to sell it and divide the proceeds from the sale.
If minor children are involved in a Texas divorce case, custody and visitation arrangements must also be taken into account when dividing marital assets like a home. If one parent has primary custody of the minor children and wishes to keep living in the current family home after divorce, they may be granted exclusive possession of it until their youngest child reaches 18 years of age or graduates from high school.
Suggested: What Is the Texas Divorce Process?
How can two people split a house?
Equalization payment
One person may agree to give up their interest in the home and take an equalization payment from their spouse instead. This means that if one spouse wants to keep the marital home, they can pay their spouse 50% of the value of the home or provide additional assets to offset the value.
Home sale
Another option for a couple who wants to split a marital home is to sell it and divide the proceeds. This might involve negotiating about items such as who covers closing costs or mortgage payments still owed.
Selling a house takes time and requires significant planning. It’s helpful for divorcing couples to discuss this issue early on, if possible, to avoid further complications down the line.
Buyout or refinance
If both parties agree, one spouse might buy out the other’s share of the home or refinance their former partner’s interest in the home. In such cases, it’s helpful to consult a real estate agent for guidance about what type of loan might be best for such a transaction and how long the process might take.
Tip: Read about how marital property is divided in community property and equitable distribution states.
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What Should You Do With Your Marital Home in Divorce? Explore Your Options.
FAQ about the marital home in Texas divorce
Could our marital home be considered separate property?
Probably not. Usually, a marital home is considered a marital asset subject to distribution because the home was used for the marriage. Even if the home was received by one spouse as a gift or inheritance – which would qualify some assets as separate property – it would likely be a candidate for marital property division because it was used for marital purposes.
What if my name isn’t on the deed of my Texas home?
If the home is considered a marital asset, it will be subject to distribution regardless of whose name is on the deed. In fact, even if you agree that one spouse should keep the home, they may still need to refinance or buy out their ex-partner’s interest to achieve that goal.
What if we decide to sell the house?
If you decide to sell the house, your settlement agreement would likely stipulate that both spouses share in the proceeds from the sale. Note that if a mortgage or other debt is associated with the home, this must be paid off with the proceeds of the sale first.
What if we both want to keep the house?
If you and your spouse are amicable, you might include in your divorce settlement the option to live in the home together in separate spaces. However, this may be confusing for young children, so it's not always the best idea.
Generally speaking, if one spouse has primary custody of minor children, they may be granted exclusive possession of the home until their youngest child reaches age 18 or graduates from high school.
If you and your spouse can communicate with one another, you may be able to resolve your disputes without going to court. The experts at Hello Divorce are familiar with divorce state law and can help you find a mediator who meets your needs and can help you fairly divide up all of your marital assets, including your home. Schedule a free 15-minute call with us to learn more about how we can help.
Suggested: Common Questions about Divorce and the Marital Home
References
Community Property. (September 2022). Texas Law Help.
Family Code, Title 1, Subtitle B, Chapter 3, Subchapter A. Texas Legislature.
