Traci Hutton, Attorney At Law

Divorce: who will keep the house?

During a divorce, your world turns upside down. You are already losing your spouse, now you worry that you also have to lose your home.

Most couples worry about their house’s fate as they consider diving up marital property. Your home is a key part of your day-to-day life, and you do not want to have to give it up. How does Texas decide which spouse will stay and which will go?

Community Property

Texas is a community property state which means that income earned during the marriage, and all assets purchased during the marriage, belong to both spouses equally. It does not matter if one spouse works full time and the other stays home. The property is divided 50/50.

Under this arrangement, both of you have a right to 50 percent of your home’s value. Likewise, neither spouse has a right to force the other to vacate the property when things go south. If one spouse moves out before assets are divided, it must be on their own free will. This does not apply in cases of domestic abuse.

Determining home ownership

Since both of you have a right to 50 percent of the home’s value, the court often has to decide which spouse will retain the home, and which spouse will receive assets that equal half of the home’s value.

If you have children, the court typically awards the house to the spouse with physical custody of the children. They want to make divorce as easy on the children as possible.

If you do not have children, the court will look into each spouse’s economic circumstances. It would not make sense to award one spouse the home if they are not able to afford the mortgage payments going forward.

Pre-existing circumstances

If one spouse owned the home prior to marriage, it is not considered marital property. They legally own the property, and it is exempt from the 50/50 split.

If you and your spouse have a prenuptial agreement, you may have already determined the future of your home. In that case, you will follow the ownership plan laid out within the agreement. There are a few circumstances in which your prenuptial agreement may be determined invalid, but not many.

Be open to the option of relocating

People put a lot of focus on the question of home ownership. Remember that there are a lot of other major decisions to make during a divorce. Consider whether you are able to comfortably afford your home based on your individual assets. Additionally, consider the emotional toll of continuing to live in your marital home. It may not be bad to start fresh with a space all your own.

If you and your spouse decide to get divorced, contact an attorney who can represent your interests and help you secure your future.

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Traci Hutton, Attorney At Law - Family Law Attorney

1235 South Main Street
Suite 250
Grapevine, TX 76051

Phone: 817-778-4543
Fax: 817-659-2991
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