Who Gets the House in a Divorce in Texas

Who Gets the House in a Divorce in Texas

Kaylyn McKenna
 | 
This is a sellers' market. If you are going through a divorce, you may be wondering who "gets the house," or "who gets the proceeds of the sale."

No divorce is cut and dry, there are a variety of potential outcomes. Here is what you should expect for dividing up your home and assets in a Texas divorce.


How is Property Divided in Texas Divorces?

Texas is a community property state per Tex. Fam. Code Ann. § 3.002. Property that was purchased during the marriage as well as debts such as mortgages is presumed to be  community property and will be split equally in the event of divorce.

There are some circumstances which warrant unequal distribution of community property. The courts have discretion to do this as long as the end result is fair and there is a reasonable basis to their decision to deviate from an equal division. The courts may do this if one spouse has significantly less earning potential than the other. For example, if one has been a stay-at-home mother and is the primary caretaker of the couple’s minor children. It can also be done to benefit disabled individuals. The court will look at each spouse’s education, health, ages, career opportunities, and separate property. They may also look at whether one spouse was at fault for the failure of the marriage.

When is the House Considered Separate Property?

In some cases property including real estate may be regarded as separate property and exempted from the community property presumption. If you owned the home prior to marriage, Texas Family Code does recognize it as separate property. Similarly, property that was gifted to or inherited by one spouse is recognized as separate property. 

What Are the Divorcing Couple’s Options?

In Texas, couples are encouraged to come to an agreement on the division of their community property. The couple may sell the house and split the profits, as is common in divorces. One spouse also may be granted the house, while the other spouse receives other assets such as retirement accounts or a vacation home. One spouse can also agree to buy out the other’s equity in the home. 

Each asset does not need to be split evenly as long as both spouses agree and the overall agreement is fair to both parties. If the divorcing spouses can’t come to an agreement, the court will divide their assets for them. They may order the sale of the home or grant it to one party.

If there is a mortgage on the home, the spouse not receiving it may want to request that the court order the other spouse refinance it. If the mortgage is not refinanced, both parties names will remain on the loan. This can have adverse credit effects if the party granted the home does not stay up-to-date on payments. The divorce decree can include a requirement to refinance, though the bank has the right to review the individual person’s income and ability to repay the mortgage loan and is not required to grant them a refinanced loan. 

Dividing property in a divorce can be a complex and nuanced issue. Find an attorney through our Lawyer Search to receive expert guidance throughout the process.


This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps. 
Kaylyn McKenna

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