Who Keeps the House in a Divorce in Texas?


Getting divorced is always an emotionally-draining, time-consuming, and often costly experience. Not only do you have to endure pain and a roller coaster of emotions when divorcing your spouse, but you may also have to decide who keeps the house in a divorce.

In divorces where the spouses cannot reach an agreement about the division of property, it is up to the judge to decide who should keep the house following a Texas divorce.

A marital home is usually the divorcing couple’s most valuable asset, which is why it is essential to understand how marital property is divided to determine what happens to your house in a divorce. Speak with a Coryell County divorce lawyer to evaluate your specific situation and determine who will keep the house.

How is Property Divided in a Texas Divorce?

Dividing property is usually the most disputed and challenging aspect of a divorce. It is not uncommon for divorcing spouses to fight over the house, automobiles, and other personal property.

Under Texas Family Code § 3.002, Texas is a community property state. Under the “community property” statute, while separate property is not subject to division, all marital property must be divided in a “just and equitable” manner. In many cases, it means a 50/50 split.

However, the divorcing couple can decide who keeps the house and other personal property without court intervention.

Is Your House a Separate Property?

A house is considered your separate property if you acquired it before the marriage or it was gifted or inherited in the course of the marriage. The following types of personal property are considered separate property under Texas law:

  1. Any personal property each party acquired and owned before the marriage;
  2. Money received by an individual spouse through a personal injury settlement or verdict;
  3. Any property or cash received by an individual spouse by gift or inheritance (before or during the marriage); and
  4. Stock dividends and capital gains from the sale of separate property.

If a particular asset is considered your separate property, your spouse will not be entitled to that property upon a Texas divorce.

What Factors Are Considered When Dividing the Marital Home?

In order to ensure a just and equitable division of community property, which may include your house, Texas courts consider the following factors:

  1. The terms of the couple’s prenuptial or postnuptial agreement, if any;
  2. The length of the marriage;
  3. The age and health condition of both spouses;
  4. Whether there are minor children and any established custody arrangements;
  5. Each spouse’s contributions to the acquisition of community property;
  6. Whether any spouse is seeking alimony;
  7. Each spouse’s education, job skills, and earning capacity; and
  8. Whether any spouse engaged in wasteful dissipation of marital assets.

How to Divide a House in a Texas Divorce

Because a house cannot be physically split in half, the divorcing couple will have to decide who keeps the house or what to do with the marital home. There are quite a few options when it comes to dividing a house in a divorce, including:

  1. Sell the house immediately and split the proceeds between you and your spouse.
  2. Allow one spouse to live in the house for a specified period of time, especially if that spouse is the custodial parent, and sign an agreement to sell the home by a specified date. The proceeds would be split between the spouses after the sale.
  3. Buy out your spouse’s interest in the house. This can be done by making a lump-sum payment to your spouse or refinancing the home in your name.
  4. Give up other marital assets equivalent to your spouse’s interest in the house. This one is similar to a buyout but is done by awarding your spouse other assets instead of giving them money.
  5. Agree to pay more spousal support to compensate your spouse for their share of the house.
  6. Continue to own and live in the house together (this one is very rare).
  7. Become a “tenant” in your house and pay rent to the other spouse.
  8. Use the house as a rental property and split the rental income with your spouse.

How Can I Keep 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 could still have a chance to draft a valid postnup. Either way, it is advised to get help from an experienced family law attorney in Coryell County to ensure that you draft a legally binding and enforceable 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.

Call Us Today to Speak with a Divorce Lawyer in Coryell

Consult with our Coryell County divorce attorneys at The Law Office of Brett H. Pritchard to determine who will keep the house in your divorce. Schedule a free initial consultation by calling (254) 220-4225 or completing this contact form.

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