One of the most challenging aspects of the divorce process is determining who will keep the family home. Because a home is one of the most valuable assets in a marriage, couples often struggle to come to an agreement on who gets to keep it after the divorce is final.
Is the Home Community Property or Separate Property?
In a Texas divorce, the spouse that keeps the house will depend on whether the home is separate property or community property. Separate property is any asset that was acquired before marriage. A gift or inheritance received at any time is also considered separate property.
Community property is all of the property and assets that either couple obtained while they were married. This can include:
- Real property
- Retirement accounts
If one spouse acquired the home before the couple got married, the house would be considered separate property. In this case, the court cannot award it to the other spouse in a divorce. The spouse claiming the home as separate property will have to show clear and convincing evidence proving that it is separate property.
However, suppose community property was used to improve the value of the home or pay a mortgage for a home that was separate property. In that case, it could be considered to be commingled property. Essentially, this means that community property was commingled with separate property, thus making it the community's property and subject to property division.
Who Gets the House if it's Considered Community Property?
Real estate, like a family house, is considered to be real property. If it is also community property, it will need to be divided in the divorce. Since a house cannot be split in half, the parties will need to determine its value and decide how to split any equity or debt from it. The home would be sold, or one of the parties would keep it.
Typically, the most common way to divide the marital home is through one of the following examples:
- One spouse wants to keep the home, and they agree to pay off any debt owed against it.
- The couple agrees that one spouse will keep the home, but the other spouse will receive half of the home's equity.
- One spouse will keep the home but give the other spouse more assets to offset its value.
- Neither spouse wants to keep the home. Instead, they will agree to sell it and split the profits.
If the couple cannot agree on how to divide the marital home, the judge can step in and make the decision for them. The judge will look at various factors relevant to the case and then order the parties to sell the house, award it to one party, or another type of split like the ones mentioned above.
Real estate issues can be difficult to resolve during a divorce. The Woodlands property division attorneys at Parchman Law Group P.L.L.C. can assist you with complex property division matters like dividing a home in a divorce.