Divorce and Your Home: Understanding the Legal Basics


The primary element that applies to nearly every divorce is the division of marital property, and often, the primary asset that must be factored into this division is the family home. Ultimately, there is a lot to consider when it comes to how couples address the family home in a divorce, and the matter is complicated by the facts that there is generally a mortgage attached, that the real estate market fluctuates, and that it can be very challenging to offset the value of a home if one spouse is committed to keeping it post-divorce. In other words, when it comes to the division of your marital property and your home, it’s complicated, but understanding the legal basics can help.

Marital Property in Texas

In the State of Texas, that property that you acquire over the course of your marriage is considered marital property regardless of all the following:

  • Who made the purchase?

  • Who paid for the purchase?

  • 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. The exceptions to this rule include:

  • Any inheritances made in one spouse’s name alone

  • Any gifts that are given to one spouse alone

  • Any purchases made with one spouse’s separate assets

RELATED READINGS: 5 Tips for Dividing Your Marital Assets in a Texas Divorce

Separate Property

If you and/or your spouse bring separate property into the marriage with you and endeavor to keep it separate throughout the years of your marriage, this property will remain your own separate property. It is important to note, however, that keeping property separate can be quite a challenge, and it is not uncommon for separate property to become mixed up with marital property to the extent that it loses its separate nature. Further, even if the asset is purely separate – the way a retirement account that follows you into the marriage would be – an increase in the asset’s overall value amounts to a marital asset.

The Division of Marital Property

In Texas, all marital property must be divided equitably upon divorce. This does not necessarily mean equally but, instead, means fairly when you take all the relevant factors into consideration. The factors that the court generally considers include:

  • The length of the marriage

  • 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 separate property

  • Each spouse’s age, health, education, and employability overall

  • Whether the children will be residing primarily with one spouse and if the children have any special needs that must be taken into consideration

  • Each spouse’s debt load and the probability that the debt will need to be repaid (which, for example, is unlikely if the creditor is a relative or close friend)

  • If fault on the part of one spouse or the other played a role in the divorce

  • If one spouse or the other spent down, gave away, or otherwise disappeared marital assets prior to the divorce

  • The tax implications of the property division

  • Each spouse’s divorce attorney fees

  • 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 (such as if one of you is a pediatrician and a pediatric office is one of your marital assets)

The court has the discretion to take any additional factors that it deems relevant to the division of your marital property into consideration.

RELATED READINGS: The Division of Marital Property in a Texas Divorce

A Note About Your Home

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 those 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.

RELATED READINGS: Who Keeps the House in a Texas Divorce?

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.

Careful Accounting

Let’s say that your spouse brings a family home into your marriage and that 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. In this scenario, your spouse’s careful accounting might allow the court to determine his or her percentage of separate ownership in your family home. If your spouse is ultimately awarded 50 percent separate ownership in the home (for example), he or she would ultimately be entitled to a 75 percent share (all things being equal) since half of the other 50 percent 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 the family home (that happens to start out as separate property). What is far more common is that couples have kids, and things really heat up. Everyone is going in every direction, and careful accounting such as that 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, and commingled property is another name for marital property (for the purposes of the division of your marital property).

Your Home and Your Mortgage

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 (the division of your marital property).

A House Divided

There are a variety of important issues that make factoring your family home into the division of your marital property exceptionally complicated, including:

  • 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), but it may not be a great time to sell 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 (with whom the children live the majority of the time).

Child Custody and Your Home

Although every divorce that involves children must address specific elements, these elements do not stand alone. Instead, they form an intertwined whole. The primary elements of divorce include:

  • The division of your marital property

  • Your child custody arrangements

  • Your child support

  • Alimony

When the court makes divorce decisions that relate to children, it always makes the best interests of the children paramount. As such, the marital home can be a case in point for how all four elements of divorce can commingle.

The Elements of Your Divorce

If you stayed home with the children and kept the home fires burning while your spouse grew his or her career during the course of your marriage, for example, the court may be inclined to keep you in the home as the primary custodial parent upon divorce. This is because the prevailing wisdom when it comes to children and divorce is that consistency is preferable. If this is how your divorce plays out, the fact that you become the primary custodial parent who remains in your family home obviously affects the division of your marital property, but it will also directly affect your child support, which your ex will almost certainly be ordered to pay (as the parent with a visitation schedule). Further, staying in your family home as the primary custodial parent and the spouse who has fewer employment opportunities (due to putting your own career on hold in this example) can also trigger alimony (called spousal maintenance in Texas) for you. In other words, there is a lot involved, and sometimes, one element of divorce affects all the others.

Selling the Home

If it is not financially feasible for one of you to stay in the family home and/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, hammering out a plan between yourselves that allows you both to maximize the overall financial gain related to your family home is the best path forward (if possible).

Your Options

When it comes to your family home and divorce, there are several basic approaches you can take.

The Primary Custodial Parent Remains in the Home

If you and your divorcing spouse are in agreement that your children’s needs and best interests are best served by remaining in your family home with one of you as the primary custodial parent, there are several options that can help you achieve this:

  • The spouse who walks away from the home can receive his or her equitable division of the marital property in the form of other assets (if this is a possibility).

  • The spouse who remains in the family home can obtain a loan to buy out the other’s ownership in the house.

  • The spouse who remains in the family home can buy out the other’s ownership in the home over time.

  • Both spouses can continue to own the home together until the children reach adulthood – at which time they can address the sale of the home.

One of You Purchases the House

If one of you is invested in keeping your family home (outside of remaining in the home with the children) post-divorce, the options remain basically the same, including:

  • You can attempt to offset your soon-to-be ex’s ownership with other assets.

  • You can obtain a loan and buy him or her out all at once.

  • You can set up a payment plan and purchase your divorcing spouse’s percentage of ownership over time.

RELATED READINGS: If Your Goal Is to Remain in the Family Home

Turn to an Experienced Killeen Divorce Attorney for the Help You Need Today

Even relatively straightforward divorces are challenging, and if your divorce involves a complicated division of property in which your family home is your primary asset, it’s time to consult with a dedicated divorce attorney. Attorney Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – has a wealth of experience helping his clients obtain divorce terms that uphold their financial and parental rights while ensuring that – if you do not remain in your home – your financial return on it is maximized. To learn more about how we can help you, please do not wait to contact us online or call us at 254-501-4040 today.


Keeping Your Home and Dividing the Equity in Divorce

Keeping Your Home after Divorce

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