One of most couples’ biggest questions when divorcing is, “Who gets the house?” Deciding what happens to your family home in divorce may depend on multiple factors. You may have the option to keep the house if you wish. But you should speak with a lawyer to fully understand your rights and obligations to your marital home in a divorce. 

When you need help resolving a dispute over the house in divorce, an experienced divorce attorney from Balekian Hayes, PLLC, can help. Contact us for an initial case evaluation to discuss your legal options.

What Happens to the Marital Home During Divorce Proceedings?

Because a divorce can take months to finalize after filing the court paperwork, spouses need to figure out what happens to the home they shared while they wait for a final divorce decree. In most cases, both spouses have the right to continue living in the home during divorce proceedings. A spouse usually cannot force their other spouse to stay out of the marital home during divorce proceedings. 

However, a spouse can obtain sole possession of the marital home during divorce proceedings by obtaining a temporary injunction from the court. The court can issue an injunction awarding one spouse exclusive possession of the marital home during the divorce case. Courts typically grant such an injunction in cases where the other spouse has committed domestic violence or if the couple has young children, and the court determines that allowing the parent of primary residence to continue living in the family home will serve the children’s best interests. 

Who Gets the House in a Divorce Decree

When the trial court issues the final divorce decree, who gets the house will depend on various factors, including, most importantly, whether the marital home qualifies as community or separate property. 

Community vs. Separate Property

Texas operates under the community property model. In a community property system, all property spouses acquire during their marriage becomes jointly owned or “community” property, even if only one spouse holds title to an asset or puts up the funds to acquire it. Spouses must divide their community property in a divorce. 

Separate property refers to assets a spouse acquired before the marriage. Separate property also includes property a spouse acquired during marriage through an inheritance or exclusive gift. A spouse keeps sole ownership of their separate property in a divorce. When a spouse claims an asset as their separate property and the other spouse objects, they must prove the separate nature of the asset by clear and convincing evidence. 

In a Texas divorce, spouses may negotiate an agreement for dividing their community property. Spouses who can’t settle the property division issue can turn to the court to resolve the question in the divorce decree. 

Courts must divide community property in a “just and right” manner, which means dividing property fairly and equitably though not necessarily equally. Although a court may start with a presumption to divide a community asset 50/50, they may divide the asset differently after considering other factors, such as:

• The spouses’ respective incomes and earning capacities
• The spouses’ respective financial situations, including the size of their separate estates
• The relative health and financial condition of each spouse
• The age disparity between the spouses
• The nature of the asset
• Whether either spouse bears fault for the divorce or committed fraud upon the community estate

Do Spouses Have to Sell the House in a Divorce?

A court may determine that a “just and right” division of the community estate requires selling the marital home. The divorce decree will order the couple to sell the home, usually giving the couple a deadline to complete the sale. Upon selling the home, the spouses must split the net proceeds according to the terms of the divorce decree. 

What If Someone Wants to Keep the House?

If one spouse wants to keep a community property marital home, the couple and the court have several options to enable that spouse to keep the house. The court may give the spouse departing the home a “credit” for their equity interest by awarding them other community property. Alternatively, the spouse wishing to keep the home may buy out their ex’s interest, usually by refinancing the property’s mortgage or taking out a home equity line of credit if the couple owns the home outright. 

When both spouses’ names are on the mortgage, the court may require the spouse keeping the house to refinance the mortgage to take their ex’s name off the mortgage. Refinancing the home or taking out a HELOC (home equity line of credit) can provide the spouse keeping the house with cash to buy out their ex’s interest in the property. 

How Can a Lawyer Help You Navigate Dividing the House in Divorce

Figuring out what to do with the family home is often one of the trickiest issues in divorce. A divorce attorney from Balekian Hayes, PLLC, can help you manage this complex issue and protect your rights and interests by:

• Reviewing the facts and circumstances of your case to determine whether your house qualifies as community or separate property
• Helping you obtain a temporary injunction if you need your spouse to move out of the home during the divorce proceedings
• Vigorously negotiating on your behalf if you and your spouse want to settle asset and property division yourselves 
• Advising you on your options for selling or keeping the house, including letting your spouse receive other community property or buying out your spouse’s interest in the home
• Advocating on your behalf if you and your spouse turn to the court to resolve your asset division dispute

Contact Balekian Hayes, PLLC, to Advocate for Your Rights in Divorce

If you have questions about how to deal with your family home in a divorce, turn to the asset division attorneys of Balekian Hayes, PLLC, for the answers and advice you need. Contact our firm today for a confidential consultation. We’ll discuss how we can help protect your rights and interests as you and your spouse figure out who gets the house in your divorce.