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Divorce & Property Division: What Happens to the Family Home?


Home is where the heart is, as they say, and even when a marriage comes to its end, the family home can still hold importance to divorcing spouses. That’s not only due to sentimental value or the desire to maintain stability in the lives of children, but also because homes are commonly the largest assets owned by couples. Whether or not you wish to keep a family home in a Texas divorce, or are ready to start fresh in a new place, figuring out what happens to the house will likely be one of the most significant and challenging aspects of your legal journey.

At Coker, Robb & Cannon, Family Lawyers, our family law attorneys have extensive experience providing the personalized counsel and support clients across Denton County, Collin County, and the surrounding areas of Texas need to effectively address and resolve all issues inherent to their divorce – including matters of property division. While the division of assets and debts can apply to nearly anything (including retirement accounts and professional practices) it is most strongly associated with what happens to a shared residence. Below we discuss a few important concepts behind the division of the family home and what we can do to help.

Defining Homes as Community or Separate Property

In the State of Texas, there is a presumption that any assets acquired by spouses during marriage are community property and all community property is subject to equitable division in a divorce. For many people, community property can include income and debts, as well as the marital residence. If your family home was purchased during your marriage it is likely community property and therefore subject to division in your divorce. Defining a home as separate property, and not divisible in divorce, will require proving it as such. For example, your home may be considered separate property if:

  • One spouse acquired it before a marriage; or
  • One spouse received it as a gift or inheritance.

While determining whether or not a family home can be considered community or separate property may seem simple, it is not always so straightforward, especially when the following applies:

  • Deeded to both spouses – Even if a place of residence is acquired as a gift or inheritance, or purchased prior to marriage by one spouse, issues may arise when it is later deeded in the names of both spouses. In this situation, which can happen when a home is refinanced, Texas courts may view the deeding of a home in the name of both spouses as a gift. This may mean that a home becomes jointly owned separate property.
  • Mortgage and upkeep – Family homes may be purchased by one spouse before marriage or received as a gift or inheritance, but they can still be paid for, improved, or generally kept by the contributions of both spouses. If both spouses use their income or funds to pay a mortgage, a non-owner spouse may have the right to seek reimbursement from the owner spouse. Reimbursement claims may also have merit in cases where a non-owner spouse contributed to improvement of the separate property home.

Because distinguishing when a home is considered community or separate property, or when there are options for reimbursement, can be a challenging matter, it is important for any home-owning spouse to work closely with experienced attorneys like those at Coker, Robb & Cannon, Family Lawyers. Our team at CokerLegal can carefully evaluate your unique situation and protect your interests.

Community Property Homes & Options for Resolution

In cases where a family home is community property the home will be divisible in divorce. Reaching a resolution for what happens to the home and how it will be divided will depend on a number of unique facts and circumstances. Below are a few ways division of a family home can be resolved:

Mutual agreement – As with nearly any aspect of divorce, spouses have the ability (and are encouraged by courts) to reach agreements on their own outside of the courtroom. This can be done through negotiations, communication, compromise, or even mediation. However, that’s not always possible when what’s at stake has as much significance as a marital home.

Court orders – In cases where divorcing spouses are unable to reach an agreement as to what happens with the home, determinations can be made by the court based on arguments and evidence provided at a hearing before the court. Based on the particularities of a case, courts may order one of several resolutions:

  • One spouse buys out the other spouse’s community property share of the home;
  • One spouse is awarded the family home for a temporary amount of time, and both spouses are ordered to sell the house by a predetermined date. This is common in cases involving children, as it can be less disruptive to their lives.
  • Both spouses must sell the home immediately and divide profits in accordance to a court order.
  • One spouse is awarded the home, and the other spouse’s share is offset by awarding them other assets or property or spousal support (alimony).

In either scenario, be it out-of-court agreements or court orders, there are generally one of two endings to the story of a family home in divorce – one spouse stays, or both leave.

  • One spouse stays – If one spouse has the means to continue making mortgage payments on their own and wants to keep the marital home, they can remain in the residence and buy the other spouse’s share or offset it through other assets or support. This requires refinancing of the loan into one spouse’s name, or the signing of a special warranty deed and a deed of trust to assume possession. Should a recipient spouse not continue making payments in this case, the other spouse would have the right to foreclose on the home.
  • Sell and split – If neither spouse wants to stay in the marital home, or if neither party can afford to do so, it can be sold and split. Splitting the net proceeds of a home sale can be done in accordance to any agreement reached in out-of-court settlements, or per the terms of a court order.

Whatever circumstances exist in your case, and whatever options you have, working with legal representation can help ensure you have the support, resources, and insight to protect your rights and interests. Remember, divorce is a legal process that can substantially affect your future, especially when it comes to finances and real estate. The best thing you can do is protect your rights by choosing a proven legal team.

Place Your Trust in a Team of Proven Collin & Denton County Divorce Lawyers

What happens to your family home is highly dependent on the individual facts of your case, including how the home was acquired and what you personally wish to accomplish. Do you want to keep the home and continue raising your children there? Do you want to sell the home as quickly as possible and split the proceeds? Whatever your goals are, knowing your available options and navigating the best course of action for a resolution demands the assistance and support of qualified divorce attorneys.

At Coker, Robb & Cannon, Family Lawyers, divorce and family law is all we do. Over the years, we have helped numerous clients address matters of property division involving marital homes, investment properties, vacation houses, and other real estate, as well as all other issues that arise when a marriage is legally dissolved. If you have questions about the division of your home during divorce, please contact us for a personalized consultation. Our attorneys are here to help. Call (940) 293-2313 to get started.

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