Divorce can be a challenging and emotional process. When considering the property division, one of the most pressing questions is often, “Who gets the house?” In this blog post, we will delve into the analysis we do with our clients to develop a strategy for the house as part of the division of the marital estate.
Understanding Property Division in Texas
Texas is a community property state. In Texas, community property encompasses all property acquired during the marriage except for property acquired by gift, inheritance, or through recovery on a personal injury claim for pain and suffering. Generally, a house bought during the marriage is community property and, therefore, subject to division by the Court.
The Texas Family Code requires a “just and right division” of the community property. A just and right division does not require an equal split of assets between the spouses, and it does not mandate that the parties divide each asset identically. This flexibility allows for creativity in the division of the community property. For example, Spouse A can negotiate a larger percentage of one asset (such as the equity in the house) in exchange for giving Spouse B more of another asset (such as a retirement account).
Does Either Party Want to Keep the House?
An essential and often overlooked question is whether either party wants to keep the house. If the answer is no, it simplifies things considerably because it is not a contested issue that requires attorney time to settle. If neither spouse wants to keep the house, then the parties can agree to sell it.
The only remaining question regarding the house under these circumstances is when to sell the house. The answer to that question is strategic and fact specific. In most instances where both parties agree to sell the house, the attorneys and the parties can reach an agreement to get the home listed for sale during the divorce instead of waiting until the divorce is final.
Just because the home is sold during the proceedings, does not mean the proceeds will be distributed during the proceedings. Because the home is often the largest asset in a marriage, dividing the proceeds can play a big part in a just and right division of the marital estate. So, if the decision about which spouse gets what from the estate has not been made, then the proceeds are often kept in trust by one of the lawyers who will ensure every penny of the proceeds is accounted for. Later, when the spouses reach a settlement agreement, or the Court orders a property division, the funds will be distributed to the parties.
When One Party Wants to Keep the House
If one of the parties intends to keep the marital residence, several factors influence whether that desire becomes a reality. Here are some key considerations:
Financial Considerations
Several financial considerations factor into the decision to keep the home. First and foremost, can the party wanting to keep the house qualify to refinance the mortgage? As a community property asset, each party has a community property interest in the equity in the home. Therefore, the party keeping the house must be able to pay the other party his or her portion of the equity. This payout typically requires refinancing the home for the mortgage balance owed plus the other party’s equity interest. It is important to know whether refinance is possible early in the divorce process because it impacts the property division strategy. For this reason, at Youngblood Law, PLLC, we have our clients explore refinancing at the beginning of the divorce. A second related factor to consider is whether the party planning to keep the house can afford the monthly payments on his or her income alone. It may be possible to qualify for the refinance without being able to fit the monthly payment into your budget comfortably. Therefore, an additional level of analysis is needed.
The Home’s Value
The easiest way to determine the home’s value is by selling it. But if one spouse wants to keep the home, another method of determining the home’s value is required. When one party intends to keep the home, the parties must agree on what the home is worth to determine the other party’s equity. Frequently, one party will set the value low while the other party wishes to set the value high. When the value of the house is in dispute, attorneys can use a few techniques to find a consensus. Absent a consensus on the value, the Court will likely order it sold at the final trial.
Whether the Other Party Also Wants to Keep the House
If both parties want to keep the house, both parties can refinance the home, and neither party is willing to concede the home in exchange for another asset; the Court will decide at final trial. The Court will likely order the home sold and the proceeds split in a just and right manner. Under these facts, both parties will lose the house.
Custody of Children
One or both parties commonly want the children to continue attending the same school. The general idea is to provide stability and continuity for the children. In most of these circumstances, it makes the most sense for the parent with primary possession of the children to stay in the marital residence. However, this factor is only relevant when negotiating between the parties. It is unlikely to sway the Court to award the house to one party over the other.
Real-Life Story: Sarah and John’s Divorce Battle
To illustrate the complexities of property division, let’s take a look at the real-life story of “Sarah” and “John,” a couple going through a divorce in Texas. Sarah had been a stay-at-home mom for most of their 15-year marriage, while John had a successful career as a software engineer.
When planning for the division of their assets, including their family home, Sarah wanted to stay in the marital residence because it was near the children’s school. John also wanted to stay in the marital residence. However, Sarah’s absence from the workforce over the 15 years they had been married made it impossible for her to qualify for a mortgage. No bank would lend her the required sum of money to finance the house and pay off John since she had no proof of income over the past several years.
In this case, it made more sense for John to stay in the marital residence and pay Sarah for her equity in the house. Although it was not Sarah’s desired outcome, the solution provided Sarah with the liquid cash she needed to start her new life while also allowing the children to maintain a connection to the home through John.
Frequently Asked Questions About Property Division in Texas
What happens if one spouse owned the house before the marriage?
Generally, if one spouse owned the house before the marriage, it is likely considered separate property. However, the other spouse may have reimbursement claims for community funds expended on the separate property house. This is a fact-specific question that should be discussed with an attorney.
Can we decide the property division ourselves without going to Court?
Yes, couples can reach their own agreement on property division through negotiation, mediation, or collaborative divorce. In fact, the majority of divorces settle in mediation and avoid litigation.
Exploring Your Options
Divorce and property division can be complex and emotionally charged. If you’re facing a divorce in Texas and unsure about who gets the house or how the property division process works, it’s essential to seek guidance from a knowledgeable family law attorney. Youngblood Law, PLLC, a trusted law firm located in Fort Worth, Texas, is dedicated to helping people with their family law issues, including divorce and property division. Our experienced attorneys can help you understand your rights, negotiate on your behalf, and ensure a fair outcome.
Contact a Fort Worth Family Lawyer Today!
Divorces can be overwhelming, and dividing the family home often adds to the complexity and emotion. Understanding the factors that influence property division in Texas is crucial for a fair and equitable outcome. By considering aspects such as the parties’ financial circumstances, the ability of the parties to agree on the value of the house, and the best interests of any children, the Court aims to determine a solution that balances the interests of both parties.
If you find yourself in the midst of a divorce in Texas and need assistance with property division or any other family law matters, don’t hesitate to reach out to Youngblood Law, PLLC. Our experienced team is ready to guide you through the legal process and advocate for your rights. Remember, seeking professional advice can make a significant difference in achieving a satisfactory resolution.
Are you facing a divorce in Texas? Do you have questions about property division or any other family law issue? Contact Youngblood Law, PLLC at 817-601-5345 or click here to schedule a consultation and protect your rights.