Updated on August 24, 2022
Divorce comes with any number of pressing matters, but one of the most common questions divorce attorneys hear is who will get the house when all is said and done. Not only is your home very likely your most significant investment, but it is also your home, which means that it is imbued with far more value than a price tag alone can reflect.
Whether you want to sell, move out, or remain in your family home with your children post-divorce, letting your experienced Fort Hood divorce attorney know this from the outset is well advised. Once you have your divorce priorities established, it can help you better focus your efforts on the negotiation process to come.
If you are not sure what will happen with your marital home in divorce, it is vital to consult with a skilled attorney to consider all of your options.
Be Careful when Moving out of Your Family Home during Divorce
Divorce is never easy, and, even in the best circumstances, things are likely to be stressful at home. You may be inclined to move out of your family home during the pendency of your divorce in an effort to help keep the peace and to reduce tension at home. Moving out of your home during a divorce, however, is not likely to be in your and your children’s best interests.
Short of a protection order—or temporary orders that say otherwise—it is unlikely that your divorcing spouse can force you to move out, and you should think long and hard before voluntarily doing so. Before making a rash move, consult with an experienced divorce attorney.
What Moving out Can Mean for Your Divorce
You might think that moving out to help keep the peace is harmless enough, but it can actually have negative repercussions for your divorce.
Becoming the Primary Custodial Parent
Your number one priority is always your children, and, when it comes to divorce, they obviously remain your top priority. This is why child custody arrangements are typically the most significant sticking point in any divorce that involves children.
If it is your intention to become your children’s custodial parent—to provide them with their primary residence—after the divorce, moving out of your family home without them during the divorce process can work against your goals.
The Court’s Motivations
Because the court’s custody decisions are always based on the best interests of the children involved, it often tries to maintain the status quo (in an attempt to minimize the divorce upheaval in the children’s lives).
This means that if your soon-to-be ex is living with your children in your family home when the court determines custody, your absence can work to your disadvantage. In fact, by leaving your children with their other parent, you send a clear message that he or she is perfectly capable of taking care of your children in the role of the custodial parent.
You want what is best for your children, and the court wants what is best for your children. The difference is that the court cannot possibly understand or know your children as well as you do, and the court’s interpretation of what is best for your children may not coincide with your own.
Ultimately, moving out during your divorce can negatively affect your ability to move back in after your divorce, which can also diminish your chances of obtaining primary custody of your children.
If life at home is simply too chaotic, and you are concerned about the effects it is having on your children, a knowledgeable Fort Hood divorce attorney can help you explore those options that will be less likely to jeopardize your chances of obtaining the child custody arrangements that are best for you and your children.
The Cost and Inconvenience
Divorce is stressful and inconvenient, and the last thing anyone wants to do is make it more difficult. Moving is a surefire way to cause you to shoulder additional costs and stress during the divorce process. Consider the following expenses and problems related to moving out during divorce:
You will likely need to find a place to live that does not require a long-term lease, and that is furnished. Basically, you are looking for a crash pad while you await your divorce's finalization, which can take a considerable amount of time.
You will need to set up your utilities and do everything else that comes with a move.
It will fall on you to ensure that you are able to see your children. Moving out puts the responsibility of carving out time with your children squarely on you, and there is no guarantee that your divorcing spouse will be amenable to making reasonable arrangements with you.
Moving out If Domestic Violence Is a Factor
While moving out of your home during a divorce generally is not a great idea, there is one significant caveat. If you fear for your safety—or for the safety of your children—you should do whatever it takes to keep yourselves safe.
If you or your kids have been a victim of domestic violence before or during the divorce case, you should consider filing a petition for a protective order. The protective order can tell your spouse to stay away from your home and place of work, as well as your children’s daycare or school.
If you merely fear that domestic violence could take place if both you and your spouse remain in the family home during the divorce, it may be a better option to leave the house and stay with a family member or friend. However, if you leave your children behind, leaving home could potentially have a negative impact on your ability to be named the child’s primary conservator.
Taking Items with You when Leaving the Marital Home
If you do decide to move out before your divorce is finalized, you will probably want to take some of your things with you. However, the court has not yet determined who gets what in your divorce. You may not have a clear understanding of what is considered community (marital) and separate property in your home.
You can take your personal belongings, clothing, documents, and other essential items if you choose to move out of the marital home. In fact, if the court orders you to leave the family home during the divorce proceedings, you will be given a chance to go back to take your belongings.
If you are certain that some of the items are your separate property, you can take them with you. However, if you have doubts, it may not be a good idea to take something that could be considered community property to avoid unnecessary disputes.
You need to be reasonable when determining what is and isn’t your separate property. However, before taking any items from the marital home, it is advisable to consult with your attorney to understand your rights and options.
You May Get the Exclusive Use of the Home During a Texas Divorce
A judge assigned to your divorce case may issue a ruling that grants temporary exclusive use of the home to you or your spouse. Basically, it means that you or your spouse has the “exclusive” right to stay in the marital home while your divorce case is ongoing.
The spouse who was not granted the exclusive use of the home is ordered to leave the marital house. When this happens, the spouse’s decision to move out is not voluntary and may not affect their conservatorship case.
However, the spouse who is ordered to leave home during the divorce may still enter the house if they have the other spouse’s permission. You should consult with an attorney to determine whether or not you can request a temporary order hearing to request the exclusive use of the home while your divorce is pending.
Understand the Division of Marital Property in Texas
If you are facing a divorce, one of the primary financial components is dividing your marital assets, which are called community property in Texas. These assets consist of the property that you acquired together as a married couple. For many divorcing couples, the largest asset is the home, which can naturally play a larger role than most other assets.
The Division of Marital Property in Texas
Before you focus on your family home, it is important to have a feel for the division of marital property overall. In Texas, property and assets that come to you during your marriage are marital property, regardless of who made the purchase, who paid for the purchase, and whose name is on the lease or deed.
If the asset came to you when you were married, it is very likely marital property as far as the law is concerned. There are some exceptions to this rule:
Any inheritances in one spouse’s name alone
Any gifts that are given to one spouse alone
Any personal property each party acquired and owned before the marriage
Stock dividends and capital gains from the sale of separate property
Any purchases made with one spouse’s separate assets
Any personal injury recoveries
These kinds of assets are considered separate property and will not be divided in divorce. Contact a knowledgeable divorce attorney to determine if your property is marital or separate.
Factors in the Division of Marital Property
In the event of a divorce, marital assets must be divided in an equitable way. Equitable in this context means fairly once all the relevant circumstances have been taken into consideration, including these factors:
Whether or not fault played a role in the divorce
Each spouse’s age, education, relative health, and earning capacity
The length of the marriage
The size of the total marital estate
The amount of separate property owned by each spouse
Any future inheritances or financial gifts anticipated by either spouse
Any wasting or misuse of marital property in the buildup to divorce
Whether or not spousal support and child support play a role in the divorce
The tax implications involved
The child custody arrangements involved
Divorce-related attorney and litigation costs
The terms of the couple’s prenuptial or postnuptial agreement, if any
Each spouse’s contributions to the acquisition of community property
Each spouse’s financial standing (relative to one another) and each spouse’s financial liquidity (are his or her assets liquid or are they tied up in investments that make moving forward financially more difficult)
Each spouse’s debt load and the probability that the debt will need to be repaid
Any reimbursements that need to be made for one spouse contributing to the other’s separate property
If the nature of the property leaves one spouse better suited to retaining it (for example, if one of you is a pediatrician and a pediatric office is one of your marital assets)
The financial ability of the spouse who wants to remain in the house to cover the mortgage and upkeep
The financial feasibility of keeping the house
Any additional factors that the court deems relevant
Those assets that you or your divorcing spouse brought into the marriage with you—and that you were able to keep disentangled from marital finances throughout—will remain your separate property, but it must be said that the separate property bar is high. Further, even if you brought an asset into your marriage with you and fastidiously kept it separate throughout, any increase in its value will very likely be considered marital property—to be divided equitably between the two of you.
For example, if the house in question was yours, to begin with, and you took the necessary steps to retain the separate nature of the property throughout your marriage (an exceptionally challenging task at best), the house’s increase in value since you married is still marital property. In other words, the topic is nothing if not complicated.
The Division of Marital Property and Your Home
The odds are that your home is your most significant marital asset and that your mortgage is your most significant marital debt, which means it has all the makings of becoming one of the most challenging elements of one of the most challenging aspects of your divorce.
Generally, the family home is considered marital property. You both live in it, which tends to negate any separate quality that might apply. Even if your spouse brought the house into your marriage with him or her and was careful not to use marital funds to maintain it, it would be a challenge to prove its legal qualification as a separate asset.
For example, even if your spouse used only his or her separate earnings to pay the mortgage and to maintain the home, those separate earnings become marital property as soon as you marry, which means there is nothing separate about the mortgage payments or upkeep expenses.
Finally, even if the hurdle of defining your home as separate property is cleared, any increase in value over the course of your marriage would be considered marital.
Additional Factors when Dividing Your Home
There are a variety of important issues that make factoring your family home into the division of your marital property exceptionally complicated:
Once the percentage of your marital property that each of you will receive is established, the fact remains that it is impossible to physically divide a home, which means other arrangements will need to be made.
Because your home is very likely your most significant asset, it can make it very difficult for one of you to remain in the home, due to the challenge of offsetting the other spouse’s ownership.
If you decide to sell your home, it may not be a great time for any number of reasons that include the real estate market.
There are considerable tax implications that need to be factored into the sale of a house with divorce.
If you have children at home, the court may be invested in keeping one of you in your home as the primary custodial parent.
To make sure that you are considering all relevant factors in your divorce, contact a reliable attorney to discuss your case.
When a Home Is Separate Property
There are situations in which a home is deemed one spouse’s marital property to one degree or another, and it’s worth taking a careful look at how this generally plays out.
If your spouse brings a family home into your marriage, and if he or she keeps meticulous, verifiable records about where the funds for every mortgage payment came from and exactly how every maintenance bill was paid, his or her careful accounting may allow the court to determine his or her percentage of separate ownership in your family home.
For example, if your spouse is ultimately awarded 50% separate ownership in the home, he or she would ultimately be entitled to a 75% share since half of the other 50% of your family home is also his or hers (due to the other half being marital property).
Less Careful Accounting
Once a marriage gets going, it is very unlikely that one spouse is going to keep very careful tabs on exactly who pays for what regarding a family home that starts out as separate property. What is far more common is that couples have kids, and the careful accounting necessary to establish separate ownership tends to fly out the window.
In other words, keeping a house in the separate property category becomes less and less likely over time. Once a separate property becomes so intermingled with marital property that the court can no longer keep up, it is classified as commingled property, which is treated the same as marital property upon divorce.
Leaving the Marital Home and Property Division in Texas
Many people are under the misguided belief that moving out of the family home during divorce will negatively affect the division of marital property. However, this is not likely to be the case. If your home is marital property, it remains so until your marital property is divided in a manner that is just and right in the divorce process.
It is possible that the court will opt to allow your divorcing spouse to remain in your marital home with your shared children upon divorce. However, the divorcing couple can decide who keeps the house and other personal property without court intervention. Work closely with a Fort Hood divorce lawyer to stay in control of the property division in your case.
Consider All Options for Your Family Home during Divorce
When it comes to deciding who will get your family home in your divorce, you have a few basic options:
You can sell the house and divide the proceeds.
One of you can retain the house and buy the other spouse out of his or her share of its value or equity.
You and your ex can maintain co-ownership of the house post-divorce (typically until the kids are out of the house).
Each of these options comes with its own set of complications and considerations. To better understand which options will work best for you and your family, schedule a FREE consultation with a skilled divorce attorney.
Selling the House
If it is not financially feasible for one of you to stay in the family home, or if there are no minor children to consider, the court’s ruling will likely be to sell your home outright to ensure a clean and equitable division from the outset, but this can leave both of you at a financial disadvantage.
For example, if your home needs some work to reap the financial gains it is capable of generating, selling early can amount to a financial hit. Further, if it is a buyers’ market, you can expect to reap fewer financial rewards from the outset.
Often, it is best to hammer out a plan with your soon-to-be ex that allows you both to maximize the overall financial gain related to your family home.
Selling Your Family Home
While selling your family home may strike you as the most straightforward option, it isn’t necessarily as easy as it sounds. There is a wide range of questions you will likely need to address:
When will you list the house on the market? Is there a preferable time for doing so in terms of market fluctuation?
Are there factors involving your children that you need to take into consideration? For example, are you waiting for your youngest to finish his or her high school career?
Who will live in the house while it is on the market, and who will be making the mortgage payments and paying for utilities and maintenance?
How will you choose the realtor who will be listing the house and setting the price?
Who will be in charge of keeping the home ready for viewers?
Who will be covering all the repairs deemed necessary throughout the sales process?
Who will make the decisions related to counteroffers and the house’s final sale?
What are your plans in the event that the house does not sell as quickly as anticipated?
The pandemic has made the housing market nothing if not unpredictable, which means the path forward is likely to be riddled with unexpected contingencies.
If you do not address the dizzying array of what-ifs and potential scenarios, you could find yourself attempting to sell a house that your divorcing spouse has become far too comfortable living in (making him or her less inclined to move the sale forward). In other words, a lot can go wrong if you do not take the bull by the horns from the outset.
One approach to this uncertainty involves determining that, if the house does not sell in a specific amount of time, the court will appoint someone to sell it for you, with the proceeds to be divided equitably between you. This kind of planning can prove very motivating and can help forestall problems from arising as time passes.
When it comes to a sale of this magnitude, it is important to address every possibility to the very best of your ability. Contact an experienced divorce lawyer to help you plan for every problem that could arise while you are trying to sell your home during divorce.
Some Helpful Hints
When it comes to divorce, preparing for worst-case scenarios is advised. Fortunately, there are several steps you can take to help you face whatever your divorce throws your way in terms of how you are going to address the matter of your family home:
Make an agreement with your spouse to accept the value that comes from a home appraisal prior to obtaining it. A local realtor who is invested in garnering your business may provide you with a free appraisal that calculates your home’s market value while incorporating all relevant comps.
Begin the process of dividing your family home (so to speak) with a realistic number. If you agree ahead of time to a realtor or a valuation company providing you with a number, it can make the path forward considerably less difficult.
Having a solid understanding of your marital assets overall can make a considerable difference in how this division proceeds. When you know what you are working with in terms of numbers, it makes negotiations less fraught with uncertainty.
Once you have established a baseline in terms of your home’s value and you have a strong working knowledge of your marital finances overall, you will be far better prepared to move forward with successful negotiations.
Divorce can complicate your finances in surprising ways. Many divorcing couples sell their family homes in the course of their divorces, which can have significant financial implications for your post-divorce future. Your home is likely your most substantial asset. Maximizing the profit you make on its sale (and minimizing the tax consequences) is critical.
Capital Gains Home Exclusion Rules
The IRS allows a couple who files jointly to exclude up to $500,000 in capital gains from the sale of their home, or $250,000 in such profits for someone who files singly. If you are a divorcing couple living in your family home, consider the following two capital gains exclusion rules that you must meet to avoid being taxed on the profits made from the sale of your primary home:
You and your spouse must have used the home being sold as your primary residence for at least two out of the previous five years.
The untaxed profit cannot exceed $500,000 (for a couple) and $250,000 (for a single filer).
Divorce can take a significant amount of time—especially for complicated, high-asset, or contentious divorces. Because the capital gains tax exclusion can maximize your profits on the sale of your home, it is crucial to focus on the pertinent details as they apply to your divorce.
Until your divorce is final, you and your divorcing spouse can continue to file your taxes jointly, which can be a financial advantage for both of you. As time passes, however, it is not uncommon for one divorcing spouse to move out of the family home, and this is where things can get tricky.
Suppose the spouse who moves out does not fulfill the two-out-of-five-years requirement. In that case, he or she will not qualify for the $250,000 tax exclusion, which can have financial implications for both of you regarding the division of your marital property. If you have to sell your house because of a divorce, it is often best to begin the sale earlier rather than later.
It is also essential to be aware that this tax exclusion will not apply if you have used it on another home 24 months prior. Further, remarrying before selling your home could disqualify you from this tax exclusion.
The tax implications of divorce can become very complicated very quickly. Contact a skilled divorce attorney for help navigating the process of selling a home during a divorce.
Buying Out Your Spouse
If your goal is to remain in your family home, you will need to buy out your divorcing spouse’s equitable share in the property. If your spouse is similarly motivated and also wants to keep the home, however, the matter becomes much more complicated. Contact a divorce lawyer for experienced guidance through all of the twists and turns of buying out your spouse.
The Benefits of Buying Out Your Spouse
The bottom line is that you both have to live somewhere, and the advantages of remaining in your current home are difficult to overstate. Consider all of the following:
The stress and upheaval of divorce are challenging, and adding a move to the mix can be utterly overwhelming.
The stress of divorce is hardest on your children. Remaining in the family home can help to soften the blow of this difficult transition.
The recent steep increase in housing prices means that it will probably cost the spouse who moves out of the family home considerably more to purchase a comparable home.
There are a lot of good reasons for remaining in the family home, and if both of you have your sights set on this goal, you can expect considerable challenges ahead.
Determining Your Home’s Value
If you are moving forward with buying out your divorcing spouse’s ownership in your home, the first order of business is determining the value of your property. While it is relatively simple to figure out the value of a house when you are selling it—the amount that the purchaser is willing to pay—this is not necessarily the case if you are purchasing your spouse’s ownership.
Putting a value on your home without putting it on the market is a far more subjective affair, and with the real estate fluctuations and the high prices the market is currently experiencing, valuing your home can be even more complex.
You obviously do not want to pay more than is necessary, but your spouse does not want to be under-compensated—and the value of your home may have undergone a significant pandemic-related uptick in value. Further, the role that emotions play in the process and the sentimental value of your family home cannot be ignored.
Making the Purchase
If you want to stay in your home, you will likely need to offset your divorcing spouse’s share of the equity in that home. While many divorcing couples think the only way to do this is by selling the house from the outset, this is not necessarily true. You have several options for buying out your spouse. Contact a skilled divorce lawyer to determine which option will work best for you.
Compensate with Other Assets
If your marital estate includes considerable assets, you can use other properties and assets to offset the value owned by your spouse.
Use a Home Equity Line of Credit
You may be able to use a home equity line of credit to buy out your spouse.
Refinance Your Home
Refinancing your home can leave you with funds sufficient to compensate your spouse for their portion of ownership.
Make Payments Over Time
If you take ownership of your home after the divorce, you could work out an arrangement with your ex by signing a note that allows you to pay back his or her share of equity over time.
Get an Owelty Loan
You can work with a mortgage broker to procure an owelty loan that allows you to own your home and pay off your ex in one lump sum.
When the court finds that a home cannot be divided without significantly diminishing the value of the resulting portions and that a just and right division of marital property can be made without requiring the sale of the home, it often orders a partition of the property with an owelty reward to help equalize each party’s share.
Continuing to Own the Home Together
It may come as a surprise, but some divorcing spouses do choose to continue owning their marital home and building equity together. Sometimes, this is a short-term answer in response to tax implications. Other times, however, it is more about allowing the kids the comfort that comes from remaining in their childhood home until they move forward with their own adult lives.
Co-owning your home can work well as long as neither of you requires the proceeds from a sale in order to move forward financially post-divorce. When the time comes to sell the house, you may be in a better financial position to buy out your ex-spouse.
This approach, however, requires you and your soon-to-be-ex to address all of the following issues related to co-owning a home:
Regular maintenance expenses
The cost of repairs and home improvements
Many couples prefer to have less interaction with one another post-divorce, which can make continuing to own a home together far from ideal. While these kinds of arrangements are rare and complicated, they can be accomplished if you are motivated and have the skilled legal guidance of a dedicated Fort Hood divorce attorney in your corner.
Getting the House in a Texas Divorce
There are several things you can do to ensure that you keep the house in a divorce:
Create a Prenuptial or Postnuptial Agreement
A prenuptial or postnuptial agreement can outline who gets what in the event of a divorce. If you are not married yet, consider creating a prenup. If you are married, you may still be able to draft a valid postnup. Either way, it is advised to get help from an experienced Fort Hood family law attorney to ensure that you draft a legally binding agreement.
Do Not Buy New Property until the Divorce Is Finalized
It is best to wait until your divorce is final to buy any property such as a new house or vehicle. Purchase of new property would make the division of assets even more complicated.
Reach an Agreement Outside of Court
A divorcing couple always has an option to come to a mutually acceptable agreement without the court’s intervention. However, you would still need to submit your agreement to the judge assigned to your case for approval.
Avoid Commingling Assets
The commingling of assets occurs when your separate property is mixed with marital property. If this happens, it can be difficult to determine what portion of the property is your separate property.
Make Sure that You Can Afford to Keep the House
If you want to keep the house in a divorce, you need to make sure that you can afford the mortgage, utility bills, and other expenses.
Get Custody of the Kids
The parent who has the right to designate the primary residence of the child is more likely to be awarded the house.
Get a Consultation with a Fort Hood Divorce Attorney
Your family home is not only very likely to be your most significant asset but is also likely to have considerable emotional value attached. The decision to stay or leave the marital home never comes easy, which is why it is advisable to seek legal counsel.
Brett Pritchard at The Law Office of Brett H. Pritchard, serving Fort Hood, Texas, is a trusted divorce attorney who recognizes the importance you attach to your family home and who is committed to skillfully advocating for a beneficial resolution to the question of who will be keeping the house post-divorce.