What happens to a family home in a divorce in Texas?

When a married couple owns a home and decides to divorce, critical decisions need to be made regarding the property. One partner might wish to stay in the residence, raising the question of mortgage responsibility. Various factors, such as credit scores, home equity, and the initial financing and titling of the property, play a role in deciding the fate of the home.

Division of Community Property

In Texas, the Law Office of Dana Baker, reachable at 979-310-5507, explains that as a community property jurisdiction, assets acquired during the marriage are divided in a manner the court considers “just and fair.”

Per the Family Code Chapter 3, property in Texas is generally divided equally. However, since real property like homes cannot be physically divided, both parties must agree on the home’s value to split equity and debt accordingly.

Options for the Marital Home:

• The spouses might agree that one party keeps the home, taking on the mortgage and any associated debts.
• An agreement might be made where one spouse stays in the home in exchange for giving the other half of the equity.
• The spouse remaining in the home might compensate the other with assets equal to the home’s value, ensuring an equitable division of property.

Mortgage Considerations in Divorce

Selling the marital home and splitting the proceeds is often the simplest solution endorsed by Texas courts for dividing marital property. When mortgage payments are outstanding, the divorcing spouses can decide on payment responsibilities. If one spouse takes over the home and its mortgage, this issue is resolved.

However, for many, the family home holds sentimental value, making the decision to sell difficult. In such cases, it’s crucial to consider how to protect both parties’ interests.

Home Ownership Implications

If a divorce decree assigns the home to one spouse and they fail to pay the mortgage, the other spouse may become liable, regardless of court orders specifying who should make the payments. Thus, a person can lose property rights post-divorce but still be responsible for the mortgage, unaffected by the divorce court’s decisions.

Fault Considerations in Divorce

Texas acknowledges both “fault” and “no-fault” divorces, which can influence property division, potentially affecting the disposition of the home.

Staying in the Marital Home

For divorcing couples where one spouse wishes to stay in the marital home, it’s essential to explore mortgage refinancing based solely on that spouse’s income. Legal measures, such as a Special Warranty Deed and a Deed of Trust to Secure Assumption, offer protection by ensuring the non-resident spouse cannot claim property rights post-divorce and is not liable for future mortgage payments.

Legal Concerns with the Marital Home

In cases involving children, Texas courts may award the home to the custodial parent, although this is not an absolute rule. When children are not involved, the court may assess each spouse’s financial ability to maintain mortgage payments. The failure to refinance the mortgage by the spouse awarded the home could lead to foreclosure, highlighting the importance of timely refinancing or, if necessary, selling the property as per court orders.