For some spouses, the hardest part of dividing property is not deciding who gets the furniture or how to split a bank account. It is deciding what happens to the house where their family built a life. A parent may want to keep the home so the children can stay in familiar surroundings and avoid another major change. Another spouse may need to sell the property to gain financial stability after the divorce. Neither choice necessarily means one person cares more about the family. Instead, each choice may reflect a different way of handling the financial and emotional changes that come with ending a marriage. Here are three things to know about the family home and property division in divorce.
1. The court first determines whether the home is community property
Texas treats property acquired during marriage as community property. This rule can apply even when only one spouse’s name appears on the deed. A spouse who claims the home as separate property generally must provide clear and convincing evidence to support that claim. Property owned before marriage or acquired through certain gifts or inheritances may qualify as separate property.
2. One spouse may keep the house
The spouses do not always have to sell the home after divorce. They may agree that one spouse will keep the property and compensate the other for their share of its value. They may also use other marital assets to offset that share. If the spouses cannot reach an agreement, a judge may award the home to one spouse as part of the overall division of the marital estate.
Keeping the house also raises practical financial concerns. The spouse who stays may need to pay the mortgage, property taxes, insurance and maintenance costs alone. A divorce judgment may require one spouse to make the mortgage payments, but the lender may still hold both spouses responsible for the loan. Refinancing may become necessary if one spouse needs to remove the other from the mortgage obligation.
3. The court does not always split the value 50-50
Texas courts must divide the marital estate in a manner they consider “just and right.” That standard does not necessarily require an equal division. A court can consider the circumstances of the marriage, each spouse’s financial position and the needs of any children when deciding how to divide the property.
As a result, deciding who keeps the house involves more than determining which spouse wants it more. The property’s classification, value and mortgage can affect the decision, as can each spouse’s financial circumstances and ability to maintain the home.
Consider what comes after the divorce
Walking away from a house can feel like losing part of a shared history. Keeping it, however, can create financial obligations that become difficult to manage alone. A decision that feels right emotionally may not work financially, while selling may provide needed flexibility but bring its own sense of loss. Before agreeing to sell, transfer or keep the home, a Texas divorce attorney can review the property, mortgage and broader division of marital assets and provide legal guidance based on the circumstances.