Who Gets the House in a Divorce?

During a divorce, many aspects of a couple’s shared life suddenly go up for debate. Who will get custody of the children? Who will get custody of the pets? How will shared assets be divided? Will there be spousal support?

All of these questions can cause an already strained relationship to completely snap, leaving both parties upset and unwilling to cooperate further. This is especially true when it comes to thinking about major decisions such as the division or custody of the house.

Understanding the Texas State property laws can better prepare individuals for the decisions that will be made by the judges regarding the division of shared property. In this blog, the dedicated divorce attorney, Alison Grant, Attorney at Law, and her team will go over what happens to a shared house during a divorce. Here is what you need to know:

Texas Is a Community Property State

The state of Texas is considered a community property state. This means that spouses equally own all of their property, making them equally responsible for all community debts. Unlike other community property states, such as California, Texas community property doesn’t automatically mean a 50/50 split when a couple gets divorced. Instead, the law states that judges must divide the property in a way that is just and right.

Does It Matter If My Spouse Was the One Who Bought the House During Our Marriage?

No. Any marital assets acquired by either party during the marriage fall under community property, meaning that even if only one spouse’s name is on the deed, both parties are responsible for it. 

Community property includes all of the following that was obtained during the marriage:

  • Financial accounts and all earned income
  • Retirement benefits
  • Retirement account contributions
  • Long-term investments
  • All debt acquired during the marriage, such as credit cards, vehicle loans, and house loans
  • Furnishings
  • Clothing
  • Jewelry
  • Rent owed
  • Property, such as houses, cars, vacation homes, etc.

The only exception to the community property laws is any pieces of property or finances that fall under the separate property category.

What Is Separate Property in Texas?

The state of Texas sees all of the following as separate property:

  • Property owned or claimed by the spouse before the marriage.
  • Property acquired by a spouse during the marriage that was a gift from a third party or the other spouse.
  • Property acquired as an inheritance or descent from a family member.
  • Any personal injury compensation from injuries that were sustained by the spouse during the marriage. However, any recovery for lost earning capacity will fall under community law, not separate property law.

For a piece of property to be considered separate property, either spouse must be able to demonstrate that the particular property/financial asset in question is the separate property by providing clear and convincing evidence. Otherwise, even these articles will fall under community property.

What Is Considered Just and Right? 

Divorce decree, gavel and folder shot on warm wooden surface

When a couple gets a divorce, a judge will divide their property based on the circumstances of the divorce and the financial well-being of both individuals and their needs. Because of this, property and debt may not be split 50/50. The factors that decide how the property and debt are divided are as follows:

  • Who faulted resulting in the marriage breaking apart (Examples of fault include a history of drug abuse, adultery, or waste of community assets.)
  • The disparity between the earning power of the spouses
  • Each spouse’s health
  • How custody of children is awarded
  • Where property was acquired
  • If either spouse or both spouses were facing tax issues
  • Each spouse’s education level
  • The future employability of the spouses

Texas State law strongly encourages spouses to reach an agreement outside of court regarding the division of their property. Once an agreement has been settled, this agreement will be written down and signed by both parties and then presented to the court in the form of a final decree of divorce. 

Are There Any Complications That Can Arise During the Distribution of Property?

Yes. Some cases are not as cut and dry as others. Here are a few examples:

One Spouse Owned a House Before the Marriage But Finished Paying it Off After Getting Married

A couple reviews estate planning options with an attorney

A lot of individuals may buy a home before they get married. In these cases, the home is considered separate property. However, this becomes muddled when the home isn’t paid off before the marriage. If the couple now has a joint bank account where the mortgage is coming out, the income that the couple receives is considered community property.

If the couple divorces, the other spouse does have a claim to that money. It may not mean that they will get the house, but it does mean that the other spouse has to pay them back for the money they contributed to the mortgage. In most cases, this would be considered half of the mortgage pay down after the couple got married. Other cases may have the other spouse taking more assets from another area and making no claim to the house whatsoever. It just depends on the specifics of the case and how the couple or the court determines the assets should be divided.

How Can I Best Protect Myself and My Assets During a Divorce?

Divorce proceedings can be extremely hard and emotional for anyone involved in them. When emotions are running high, it can be hard to stay focused on what truly matters. Thankfully, having a strong support system, such as Alison Grant, Attorney at Law, can help provide you with the guidance and direction needed to ensure the best possible outcome for your divorce. Call our team today for more information on our divorce services or to schedule an appointment to go over the specifics of your case.

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