Which of you will keep the house during your Texas divorce?

June 18, 2019

The biggest assets often cause the most concern during a divorce. You and your ex are likely keenly aware of the value of your marital home, as well as your retirement accounts. That may mean you both have wishes regarding those assets, which may or may not reflect the reality of Texas law.

When it comes to the family home, there’s a lot of misinformation and quite a few urban legends floating around about what the courts will do. Familiarizing yourself with the asset division process in Texas makes it easier for you to understand what may happen with your house in a divorce.

Community property laws impact your house

Texas is one of only nine states that continues to use a community property standard for asset division. Generally speaking, unless there is a prenuptial agreement on record, the assets you and your spouse acquired during your marriage, including your income from your job and the equity in your home, are community property. That means that each spouse has a shared ownership interest in the property.

Shared does not always mean absolutely equal. It’s also possible for the home to remain the sole and separate property of only one spouse. There are many extenuating and unusual circumstances in which the house may remain the sole property of one spouse.

These situations could include if your spouse owned the house outright before marriage or if it was part of an inheritance. However, even in those circumstances, if your income went to maintain or pay for the home, or your personal effort went into its upkeep, you may still have a claim to some of the equity in the house.

Custody can play a role in who gets the house

One of the common myths about divorce is that the person who files usually has the option of changing the locks and kicking the other spouse out. In reality, that sort of behavior is illegal and frowned upon by the Texas courts.

However, if one spouse does provide the majority of care for the children and remains in the marital home, that may improve the chances of the court allocating the home to them.

Still, shared custody is the most common outcome in modern Texas divorces. Both parents will have a custodian relationship with the children, which means that if either parent retains the home, the children will still get to stay there for a good portion of their time.

Your financial circumstances may play a role in how the courts handle the house

If you are currently not working and hope to retain the home, it may be more difficult than you initially think. It is not as common as people imagine for the courts to order alimony in modern divorces. They expect that spouses who can support themselves will.

If you do not have enough income to cover the cost of the mortgage and the maintenance of the house, the courts may not consider allocating the home to you. In order to fairly and evenly split assets in a divorce, it usually becomes necessary for the spouse who retains the home to share some of the equity in it with their ex.

Refinancing the home to cash out equity is usually the only way to do that unless your household has substantial cash assets that can be used to offset the value of the home’s equity. If you don’t have enough income or good enough credit to finance the home on your own, the court may award it to your spouse or they may order you to sell it as part of the divorce process.