Divorce is an emotionally charged word. It can signify a substantial change in the life you built for your family and yourself over multiple years.
There are questions about what happens to your relationship, your finances, and your children. Another large question is, If you get a divorce, who gets the house?
Predicting who gets the house in a divorce in Texas can be worrisome, but a Texas divorce attorney can help you make the best plan for the division of your marital assets.
What Happens to the House During Divorce Proceedings?
Few divorces move quickly unless agreements are reached very early in the case. A typical divorce can take 4-12 months. Since there might be no final decisions about your divorce for a year, you may be wondering what happens to some of your assets during that time. During a divorce, who gets the house?
Generally, both spouses have a right to live in the house while a divorce is pending, but there are times when one spouse can exclude the other from the house.
After you initiate a divorce, you or your spouse can file a motion for a temporary injunction. An injunction is a court order that forces a party to take a specific action or prohibits a party from taking a specific action.
After a temporary injunction hearing, a judge can exclude a spouse from the house. A judge may exclude a spouse because of a protective order, because a spouse’s actions diminish property values, or for other reasons. This exclusion can last during the entirety of the divorce proceedings.
In the Final Decree of a Texas Divorce, Who Gets the House?
When getting a divorce, who gets the house depends heavily on whether that house is community property or separate property.
What Is Community Property?
Community property is any property, other than separate property, that you or your spouse acquired during the marriage. If you and your spouse purchased your home together while you were married, it is likely community property, regardless of whose name is on the deed.
What Is Separate Property?
Separate property is generally property you acquired before you got married, as well as gifts or inheritances you individually received during the marriage. Separate property includes:
- Property a spouse owned before marriage;
- Property a spouse acquired during marriage by gift, devise, or descent; and
- Personal injury settlements and awards a spouse recovers during marriage, except any recovery for loss of earning capacity, loss of wages, or loss of consortium during marriage.
Generally, each spouse keeps their separate property in a divorce, and a judge divides only the community property between the spouses.
How Do I Prove My House Is Separate Property?
Texas law assumes that any property you possess before or during divorce proceedings is community property.
You must prove your separate property is separate by clear and convincing evidence. A good divorce attorney can gather the compelling evidence to prove by clear and convincing evidence that your separate property is not community property.
If I Get a Divorce, Who Gets the House My Spouse and I Purchased Together?
Chances are, you purchased your house during your marriage and your house is community property. If you do not have a marital agreement, the divorce court divides community property in a manner that is “just and right, having due regard for the rights of each party and any children of the marriage.” But what does that mean?
A judge has a lot of discretion when they decide how to divide community property, but the factors they use to determine what is just and right include:
- Income disparities between the spouses;
- The spouses’ capacities and abilities;
- The spouses’ relative needs and financial condition;
- The spouses’ relative fault in ending the marriage;
- The benefits the spouse without fault would have received had the marriage continued;
- The spouses’ relative physical conditions;
- The spouses’ disparity in age;
- The spouses’ separate estates;
- The spouses’ education; and
- The nature of the property to be divided.
There are no hard and fast rules to determine who gets the house in a divorce, but the above factors can prepare you for how your decree might turn out, or what proof you need to keep the house.
Based on the very specific details of your case, the house could go to either spouse.
If My Spouse Gets the House, What Do I Get?
If you have substantial equity in the house, the court may require the spouse who keeps the house to buy out the other spouse’s interest, and to refinance it. Or it may award the spouse other assets to offset the value of the house. If these options aren’t possible, there is also a chance that a judge will order you and your spouse to sell the house and split the proceeds.
In a Texas divorce, who gets the house depends on the unique characteristics of your life. Divorces are incredibly personal proceedings that require a deep understanding of who you are and what you need. An experienced divorce attorney can tell your story to the court and help you win what you need to move forward in a trying time.
Contact The Larson Law Office Today
At The Larson Law Office, we pride ourselves on personalization and responding to the finest details of your case. Attorneys Erik and Diana Larson are a husband and wife team with over 20 years of experience, and we show up for you from start to finish. Contact The Larson Law Office for a free consultation and a plan for your future.