Single For Summer (part 3)
For many people facing a divorce, the marital residence is their single biggest asset. Often, aside from some retirement accounts, the most liquid cash to use during or after the divorce is tied up in the house as well. There is more to dividing the marital residence than just who wants to keep it. Here are some practical things we look at to determine which party gets the house or if it gets sold.
1. Was the house purchased during the marriage or before?
The first step in any analysis of distributing the house in a divorce must begin with when the house was purchased. If the house was purchased by one spouse before the marriage, the house is considered that spouse’s separate property, and is not community property. (For a discussion of what is community property in Texas see here.) If the spouses both purchased the house before the marriage, then both have a separate property interest in the house. Of course, if the house was purchased during the marriage, then it is community property so both parties have an ownership stake in it.
2. Whose name is on the mortgage?
If only one spouse’s name is on the mortgage it can help determine who ends up with the house. For example, if only Wife’s name appears on the mortgage, then she is the only spouse who is contractually bound to make the payments to the mortgage company. If she can afford to keep the house, awarding it to her could be as simple as a refinance, whereas awarding the house to Husband essentially requires him to buy the house from Wife. If both spouses are on the mortgage, then there is no clear winner when it comes to getting the house.
3. Who can refinance or buy the house?
In most cases, both spouses have an ownership interest in the equity in the home that must be distributed. This usually means the refinancing spouse must be able to get enough loan to cover the remaining mortgage amount and pay the other spouse his or her share of the equity in the home. If the spouse cannot get approved for that much loan, then he or she will likely not be able to keep the house.
4. What if neither party wants the home or can afford to refinance it?
If neither spouse wants to keep the home, or if neither spouse can afford to pay off the other spouse and make the required mortgage payments, the house will likely need to be sold. Then the proceeds are available for distribution to the spouses in the divorce or thereafter.
There are many factors that help us fairly distribute the marital estate in a divorce, but when it comes to the question of who gets the house, there is more going on than just who wants it. From a legal perspective, the spouses can make many agreements about the distribution of property, but when one or both parties are bound by a mortgage, we have to consider the financial aspects of who can afford the house and/or who can refinance the house when we start trying to divide the home in a divorce.
Youngblood Law, PLLC is a Fort Worth, Texas family law firm focusing on helping working people live the life they WANT through divorce and beyond. This essay is intended for educational use only, and is not a replacement for competent legal counsel. If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC. For more information contact us at 817-601-5345, find us on the web at www.youngblood-law.com, or on your mobile device, open your browser and type in lawfw.biz and press Go. Find us on Facebook at www.facebook.com/youngbloodlawPLLC/