Can I Keep My House When I Get Divorced?
Here’s what you need to know when getting divorced in Texas:
To be awarded the house in your divorce in Texas, you need to understand how Texas law handles the division of property. Absent an agreement between you and your spouse, Texas courts divide property in a manner that is “just and right,” considering the rights of each party and any children of the marriage. This means that the court has broad discretion to decide how to divide the property, including the marital home.
Community Property:
If the house is considered community property, it will be subject to division by the court. Community property includes most property acquired during the marriage, except for gifts, inheritances, and anything purchased during the marriage with separate property funds. The court can award the house to one spouse as part of the division of community property. Factors the court will take into account when dividing community property are the earning power, capacity, and needs of each spouse, as well as any fault in the breakup of the marriage.
Separate Property:
In some cases, the court may award the house to one spouse as their separate property. For example, if the house was acquired by one spouse before the marriage or through inheritance or gift, it may be considered separate property and awarded accordingly. Additionally, if the house was acquired in exchange for separate property, it may also be considered separate property. Finally, if the house was acquired during the marriage, but one party used separate property funds to purchase the home, it may be awarded to that spouse as their separate property. However, anything purchased during the marriage is presumed to be community property in Texas. This means that the spouse claiming they have a separate property interest in the property purchased during the marriage has the burden of proving it.
Factors the Court will consider:
To increase your chances of being awarded the house, you will want to present evidence of your financial contributions to the home, your need for the home, and any agreements you and your spouse have made regarding the property. In a suit that involves children, the court will make a ruling based on the best interest of the child standard. Therefore, any evidence you can present that a move would negatively impact the children will likely increase your chances of being awarded the marital home. This will likely be more persuasive to a court if you have/will have the right to designate the primary residence of the children and are able to afford making payments toward the home after the divorce is final.
However, the court may also decide that neither party should be awarded the home, and it should be sold. It is more likely a court will come to this conclusion if the parties will receive financial relief from selling the marital residence. If you don’t want to take your chances as to what a judge will decide in court, you may also consider negotiating a property settlement agreement with your spouse, which can be incorporated into the divorce decree.
Hire an Attorney That Can Help!
Ensuring you have an attorney that is comfortable in the courtroom and is familiar with the judiciary will guide you to make informed choices to achieve your desired outcome. The attorneys at Grinke Stewart Family Law are here to help you. Contact us at (469) 598-2001.
