Who Gets the House in a Divorce?

One of the most common concerns people have in a divorce is who is going to keep the house they have been living in during their marriage. The answer to that question can vary in each case depending on the facts of that particular case. This blog post is going to address some of the things that could happen to your house in your divorce.

If it is your Separate Property, you Keep it.

The concept of separate and community property is sometimes difficult. In Texas, the distinction on property is made based on the date the home is purchased, something referred to as “inception of title.” If the house is purchased in one person’s name before the date of marriage, it is their separate property. If it is purchased after the date of marriage, it does not matter whose name is or isn’t on the deed or purchase documents, it is community property. That means that if the home is purchased before marriage by one party the court doesn’t get to divide the house in the divorce because it is separate property. This doesn’t mean that the other party may not have the right to be reimbursed for value added to the house during the marriage, but it does mean that if it is your separate property, you keep your ownership interest in the house.

If it is Community Property, it Depends.

When a house is purchased during a marriage typically the house gains value that will be considered an asset of the community estate. Anything that is an asset of the community estate is subject to being divided during a divorce. The Texas Family Code provides that, “the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” A typical distribution of the community estate during a divorce is close to 50/50. What this means is that if one person wants to keep the house during a divorce, they need to be able to afford to buy the other person out in order to make the division of the community estate as close to 50/50 as possible. The easiest way to get this done is to come to an agreement with the other party that one person will keep the house and the other person will receive another asset to make up for the interest in the house that they are losing or to agree to a cash payment to be made to the party that is not receiving the house.

If the parties can’t come to an agreement on who will keep the house they can each ask the court to grant them exclusive use of the home. There are a lot of factors that the court may look at when deciding who will keep a home, such as where children will live or who is in the better position to take on the obligations that are associated with the home. Additionally, the court may force the parties to sell a home and split the proceeds if the court deems that that is the best way to ensure a just and right division of the community estate. The easiest way to guarantee that both parties are receiving an equal amount of value from the home is to sell the home and divide the proceeds equally. However, selling a home involves additional fees and expenses that will lower the amount of money that is actually received by each party.

What Does this Mean for me?

Having an experienced attorney advise you on your options when it comes to what to do with your marital home is important. There are certain documents that can be drafted in addition to a divorce decree that can help protect you financially when changing the ownership interest in a house in a divorce. Also, guaranteeing that the divorce decree is properly drafted to reflect how the house was handled in the divorce can save you a lot of time and money in the long run. Contact Guest and Gray if you have any questions regarding what will happen to your home in your divorce.