Who Will Get the House in Our Divorce?


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 this is all 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. If, for example, you are invested in remaining in your family home with your children post-divorce, letting your experienced 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.

The Division of Marital Property Overall

Before you focus on your family home, it is important to have a feel for the division of marital property overall. In Texas, that property and those assets that come to you during your marriage are marital property, and in the event of a divorce, these assets must be divided in an equitable way. Equitable in this context means fairly once all the relevant factors have been taken into consideration. Such factors include:

  • Whether or not fault played a role in the divorce

  • Each spouse’s age, relative health, and earning capacity

  • 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/or child support plays a role in the divorce

  • The tax implications involved

  • The child custody arrangements involved

  • Divorce-related attorney and litigation costs

  • The unique nature of any properties involved

  • 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. The current pandemic-driven housing costs are likely to make this increase in value even more considerable. In other words, the topic is nothing if not complicated.

Your Family Home: Divorce Options

When it comes to who will get your family home in your divorce, the basic options include the following:

  • You can sell the house and divide the proceeds accordingly (in compliance with the framework of your division of marital property)

  • One of you can retain the house and buy the other spouse out of his or her share of its value or equity – either by obtaining a loan and buying him or her out outright or by paying him or her off over time.

  • 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.

Selling Your Family Home

While selling your family home may strike you as the most straightforward option, this isn’t necessarily so. There is a wide range of questions you will likely need to address (as applicable):

  • 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 who will be setting the price?

  • Who will be in charge of keeping the home viewer ready?

  • 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 (and 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 involves determining that, if the house does not sell in a specific amount of time, the court will appoint someone to sell it on behalf of both of 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.

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 that much more complicated. 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 plenty challenging enough, and adding a move to the mix can be utterly overwhelming.

  • The stress of divorce is hard on everyone, but your children may take it the hardest of all. Remaining in the family home can help to soften the blow of this unavoidably difficult transition.

  • The recent steep increase in housing prices means that it will very likely cost the spouse who walks away from 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 (or vice versa), the first order of business is determining its value. 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

Ultimately, you will likely need to purchase your spouse’s percentage of ownership, which typically involves one of the following options:

  • If your marital estate includes considerable assets, using other properties to offset the value owned by your spouse

  • Using a home equity line of credit to buy your spouse out

  • Refinancing your home to compensate your spouse

Hammering out an equitable distribution of your home’s value and ensuring the transaction is timely can help make the process less painful and more straightforward for both sides. It must be said, however, that coming to a mutually agreeable value for your home can be exceptionally difficult.

Some Helpful Hints

The thing is that 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, including:

  • 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 (and all that uncertainty has a way of complicating the process significantly).

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.

Continuing to Own the Home Together

It may come as a surprise, but some divorcing spouses do choose to continue owning their marital home 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. This approach, however, requires you and your soon-to-be-ex to address all of the following:

  • Mortgage payments

  • Regular maintenance expenses

  • The cost of repairs and home improvements

  • Taxes

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 are definitely more complicated to work on, they can be accomplished – if you are motivated to do so and have the skilled legal guidance of a dedicated divorce attorney in your corner.

The Factors Involved

The basic factors that the court will take into consideration in determining who gets the house in your divorce (or in determining that it needs to be sold) include:

  • The child custody arrangements and the potential for maintaining the status quo for them (to the degree possible)

  • The best interests of the children

  • The financial ability of the spouse who wants to remain in the house to cover the mortgage and upkeep

  • If keeping the house is financially feasible

  • Any additional factors that the court deems relevant to the situation at hand

An Experienced Killeen Divorce Attorney Can Help

Your family home is not only very likely to be your most significant asset but is also likely to have considerable emotional value attached. Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, 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. Your case is important, so please do not wait to contact us online or call us at 254-501-4040 for more information about how we can help you today.


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