How Can A Spouse Keep The House After A Texas Divorce?
In Texas, property is divided according to community property laws. This means that any property, including a house or condominium acquired during the marriage belongs to both the husband and wife.
Property that one spouse owned before the marriage belongs to just that spouse. Debts are treated the same way. A mortgage to finance a home is the responsibility of both spouses if the mortgage was created after the marriage date.
As with most legal issues, some exceptions may apply:
- A home that was a gift from anyone or was acquired through an inheritance belongs just to the person who got the gift or inheritance.
- If the money for the house was obtained through a lawsuit, then it is possible that the person who obtains the settlement can claim they are the sole owner of the house. Settlement payouts as a basis for sole ownership do not apply if the money was obtained to compensate the spouse for loss of earnings. This means that a spouse who gets a worker’s compensation award for back pay or a personal injury award that includes payment for lost wages and then uses those funds to buy a house – will have to split the house with their spouse.
Practical Options For Selling Or Transferring The Title Of A Home
The marital couple can either work out an agreement on their own or have the judge render an order awarding the hosuse to one spouse or ordering the house to be sold.
To avoid the uncertainty that goes with court orders, many couples agree to:
- Sell the home and split the proceeds. This is the cleanest and quickest way to handle the house. Nobody gets the house.
- Trade off other assets. For example, a wife can agree to forego her right in a husband’s retirement benefits or a car or truck, in return for keeping the house.
- Work out a buyout arrangement. Here, the couple agrees on how much money the other spouse’s marital interest is worth and then agrees on a payment schedule. For example, if a home is worth $200,000 and each spouse has an equal interest, the couple can agree that one spouse will buy out the other’s $100,000 over a 10 or 20-year period.
- Refinance. If a wife is buying out the other husband’s interest, for example, the best option, if possible, is for the wife to refinance the home. In the example, if the house worth $200,000 with a 50/50 interest is sold – the wife would get a $100,00 mortgage, pay off the husband, and then make the payments to the mortgage company instead of the husband.
Buyouts and refinances get more complicated if the original home has a mortgage, which most homes do.
Judicial Awards That Split The Marital Home
If the couple doesn’t agree on how to handle the home, then the family judge must make the decision.
Under Texas family law, a judge can consider these additional factors:
The judge can order a fairer split based on the circumstances. Some reasons why the family law judge may order a disproportionate division are:
- A disparity in education
- One spouse is much older than another spouse
- A spouse has a serious illness
- Whether one spouse was at fault in causing the dissolution of the marriage
- One spouse has a much better chance to earn a good living than another spouse
The judge can consider the best interests of the child. The judge will also consider if there are any minor children and which parent/spouse the children are going to stay with – which parent has primary legal custody.
The court normally likes to award the home to the spouse that has primary custody of the children to since staying in the same home is usually better for the child than uprooting the child and forcing a move to a different location and often a different school.
The family court can consider if spousal maintenance, alimony, is due one spouse. Texas normally doesn’t award spousal maintenance unless unusual circumstances apply:
- One spouse was convicted of violence against the other spouse or against the children.
- One spouse has a disability and cannot support himself/herself
- The marriage is 10 years old or older and the spouse seeking support doesn’t have the ability to earn a living.
The value of the spousal award can then be used to decrease the amount of the home value that is due the other spouse.
The judge can then make the same practical decisions – to sell the home, arrange a tradeoff, prepare a buyout, or obtain a refinance.
Sometimes the judge will sign an order that allows one party to buyout or refinance the home within a set time period, such as six months.
If the transfer can be arranged – great. If not, then the home is sold and the proceeds are split. Judges normally cannot order that one spouse’s name be taken off a loan or mortgage.
Learn How To Save A Home In A Texas Divorce
Part and parcel of any Texas family law practice is knowing how to:
- Focus on the best interests of the child
- Show a spouse is due more than 50/50 share
- Prove the fair market value of the home
- Showing that there is other community property can be traded off
- Arranging refinancing or negotiated payout terms
- Arguing for spousal support
Call Scott M. Brown & Associates at 979-849-8526 to make an appointment. Understand and review your legal and financial options with an experienced attorney.
We have three convenient office locations in Angleton, Pearland, and Clear Lake/Webster.