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Divorce: Who Gets the House

In A Texas Divorce, Who Gets The House?

Buying a house is the most important investment you can make in terms of physical property. You must consider the actual money spent on buying the house as well as furnishing it on the interior and exterior.

Another important factor to consider is that your house will shelter and safeguard your most precious asset, your family. The family house clearly has more than monetary value tied to it. There is also personal and emotional value at stake.

What occurs in a divorce when a couple believe they can no longer be married and getting divorced is their only option?

How will the property be divided? Who gets the house in a divorce?

Based on their years of experience helping clients in family law cases in Texas, the attorneys at Scott M. Brown & Associates would like to express their thoughts on the subject matter.

  • The State Of Texas Is A Community Property State
  • What Happens To The House During A Divorce Proceeding?
  • How Do You Sell Your House After The Divorce?
  • How Do You Transfer Ownership Of A House After The Divorce?
  • How Can I Remove My Name Off The Mortgage After My Divorce?
  • Contact The Scott M. Brown & Associates

One of the most stressful aspects of the divorce process is the division of property and debt. It is difficult to grasp how these marital assets will be divided in a divorce proceeding without the assistance of a skilled Texas family law attorney. Don’t give up what is rightfully yours. Our divorce lawyer can help you in protecting your assets through a divorce and ensuring that your assets and property are divided equitably. Call our law firm to speak with an experienced family law attorney in Texas about your divorce case!

The State Of Texas Is A Community Property State

Who gets the house in a divorce

The term “community property” in Texas State law refers to the fact that the majority of property obtained by the husband and wife during the marriage belongs to the community estate, and it is subject to partition upon divorce.

Naturally, the Court cannot cut the house in half with a huge axe. In the absence of this, the Court would most likely assess which party is financially capable of shouldering the housing payments on their own and which person is better positioned to have the child of the marriage, if any, get physical custody.

If at all feasible, the children should stay in the family home to avoid further upheavals to their life.

Before We Define Community Property, Let Us Define Real Property

Land and everything attached to it is considered “real property.” This comprises houses, buildings, and fittings.

Because they are not attached to the land, mobile homes are not real property. The land on which the mobile home is situated, on the other hand, is considered real property.

What Is Community Property?

According to Texas divorce law, all property and incomes earned by both spouses during the marriage are considered community property (property jointly owned by the spouses). It doesn’t matter who paid for it or whose name is on the title, contract, account, or note, as long as it was bought between the dates of marriage and divorce and was not a gift, an inheritance, or a personal injury settlement.

Examples Of Community Property Are:

  • Employment income, including any wages, salaries, overtime, and tips;
  • A house or any other real estate bought during the marriage;
  • Vehicles bought during the marriage, regardless of which spouses name is on title;
  • Contributions to pension, 401K, or other retirement investments made from the day of marriage;
  • Unemployment benefits and lost wages;
  • Checking and savings account balances, regardless of whether it’s a single or joint account.

What Is Separate Property?

Unless a spouse can prove (or both spouses agree) that it is separate property, anything acquired during a marriage is community property. 

Separate property is defined as property owned before the marriage or obtained during the marriage as a gift, an inheritance, or as part of a personal injury settlement.

Examples Of Separate Property Include:

  • A spouse’s house that was bought prior to the marriage;
  • A vehicle gifted by a spouse’s parents;
  • Jewelry gifted to one spouse by the other;
  • Contributions made to a spouse’s retirement account prior to marriage;
  • Inheritance of the spouse;
  • Personal injury compensation for a spouse as a result of a vehicle accident in which he was injured.


A house or automobile bought before the marriage is considered separate property. However, if mortgage or automobile payments on separate property were paid with community funds after the marriage, the non-owning spouse has the right to seek reimbursement for money used to pay for the other spouse’s separate property.

What Happens To The House During A Divorce Proceeding?

Unless settlement agreements are secured very early in the case, few divorces move fast. 

A conventional divorce might last between 4 and 12 months. Because your divorce may not be finalized for a year, you may be wondering what happens to some of your assets during that time. 

Who Gets The House During A Divorce?

While both spouses have the right to live in the house while the divorce is proceeding, there are circumstances when one spouse can exclude the other.

After you file for divorce petition, you or your spouse may file a move for a temporary injunction. An injunction is a court order that either requires or bans a party from doing a specific action.

A court judge may order the exclusion of a spouse from the house after a temporary injunction hearing. A court judge may exclude the spouse due to a protective order, a spouse’s conduct affecting property values, or for any other reason. This exclusion could last the entire time of the divorce proceedings.

Do I Relinquish My Rights To The House If I Leave During The Divorce?

No. If you move out during the divorce, you do not give up any rights to the marital house. However, a court judge may consider it while deciding how to split marital property.

How Do You Sell Your House After The Divorce?

Both parties must sign the closing paperwork if the court judge directs or the parties agree to sell the house. The divorce decree should contain a full legal description of the house as well as the time frame for the parties to complete the sale.

How Do You Transfer Ownership Of A House After The Divorce?

Your divorce settlement should give a detailed legal description of the house as well as who will get it. The final ruling should also specify who would be paying for any house-related expenses. After the court judge issues the decision awarding the house to one spouse, the other spouse must sign a Special Warranty Deed transferring all of your interest in the house to the other spouse. The Special Warranty Deed must be filed in the property records of the County Clerk’s Office.

How Can I Remove My Name Off The Mortgage After My Divorce?

After you get a divorce, the only way to remove your name from the mortgage is for the spouse who keeps the house to refinance the mortgage in their name. The process of a divorce may take some time since the bank will check that spouse’s income and assets to decide whether or not they can refinance the mortgage.

The final Decree of Divorce should say whether the spouse who keeps the house is required to refinance the loan and how long the spouse is required to refinance. The court cannot force a bank to provide a loan, but having it in writing enables you to file a motion to execute the decree if your former spouse does not refinance within a reasonable time frame.

It is ideal for the parties to execute a Deed of Trust to Secure Assumption pledging to pay the mortgage until the spouse ordered to pay the debt can refinance. This should specify what rights the other spouse may have if the debtor spouse defaults on the mortgage.

Contact The Scott M. Brown & Associates

We can be your fervent advocates and trustworthy advisers on all legal issues in your case. To learn more about your legal options, call our law firm or contact a Pearland divorce attorney online.

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