During the course of marriage, couples typically acquire a great deal of property and possessions. After the marriage ends in divorce, dividing the property between the spouses is necessary. In the case of items like cars, furniture, and appliances, property division is simple enough, since the individual items are easy to value and separate. But what happens when spouses own a home and find themselves having to divide real estate between them?
Texas is a community property state; Texas law presumes to be community property any property the spouses acquired during the marriage that was not received as an individual gift or inheritance. A court will divide community property between the spouses in a divorce, while any property that was acquired before the marriage, called separate property, stays with the person who acquired it. This means that if you and your spouse bought your residence after you got married, it is community property, and you must divide it.
Since a judge can take into account many different factors in dividing the community estate of the parties, the court has great discretion in how it divides the estate. The standard is what the court deems “just and right”, having due regard for the rights of each party and any children of the marriage.
This can prove to be an emotionally charged and complex process. The state of the current real estate market can make the process even more frustrating because the equity in the house or other real property may not be as much as it once was, adding real financial consequences to the already potent attachment either spouse or any children might feel toward their home. Ideally, you and your spouse can reach a settlement agreement that explicitly divides the house and other real property between you. If one of you particularly wants the house, you may have to be willing to accept a lower percentage of the community estate in a settlement in order to make certain you get the house. There is absolutely no guarantee that the court will award a person the house. The court may very well decide that it would be better to sell the house, or award the house to the other spouse.
The best option is for one spouse to take over the house by refinancing the mortgage in their name alone and removing the spouse from the debt. If there is any equity in the residence, the spouse who is keeping the house must pay out an equitable share to the other party. If you are not able to refinance or there is not enough equity in the home, one spouse can become solely responsible for the payments, although this may not completely protect the other spouse from debt liability if the one keeping the home becomes unable to pay.
Contacting a Houston divorce lawyer is an important first step in the often messy process of dividing a house or other property.
