Who gets the house? is one of the most common questions asked in divorce proceedings. In a Texas divorce, the answer first depends on whether the home is community or separate property. If it is community property, the court may award the home to one spouse, order it sold, or approve an agreement addressing the home. While the case is pending, temporary orders may also determine who can occupy the property. This blog looks at key factors Texas courts consider in deciding the fate of the family home. Please be mindful that this blog is not a comprehensive guide, so not every possible scenario is covered.
How Do Texas Courts Determine Whether the House Is Community or Separate Property?
Texas courts begin with the rules governing separate and community property. A house owned before marriage is generally separate property. A home acquired during marriage is generally community property unless a spouse establishes that it is separate property, perhaps because it was acquired by gift or inheritance. Texas law presumes property possessed during or at the dissolution of marriage is community property, and a spouse claiming separate property must prove that characterization by clear and convincing evidence.
What If One Spouse Bought the House Before the Marriage?
If the house was bought before the parties married, it is generally classified as the separate property of the party who owned it before marriage and is not subject to division by the court as community property in a divorce.
That does not necessarily mean the house is irrelevant to the divorce. Questions can arise about whether the property has been properly maintained as separate property during the marriage and whether community funds were used during the marriage to pay debts or make improvements involving the property.
For example, if one spouse owned the house before marriage but community funds were later used to reduce qualifying debt secured by the house, the property may remain separate property while a reimbursement issue arises between the marital estates. Texas law recognizes reimbursement claims for certain benefits one marital estate confers on the other.
What If the House Was Bought During Marriage and Both Spouses Are on the Mortgage?
If the house was bought during the marriage, it is generally presumed to be community property and may be subject to division in a divorce proceeding. If the parties cannot reach an agreement informally or at mediation, the court will make a fair and equitable determination regarding disposition of the house as part of a just and right division of the community estate.
A just and right division does not necessarily mean that every individual asset will be divided 50/50. The house is considered along with the other property and liabilities in the community estate. Depending on the circumstances, one spouse may receive the house while the other receives other property or a financial award. The house may also be sold, with the net proceeds divided according to the parties’ agreement or the court’s order.
What If the House Was Bought During Marriage but Only One Spouse Is on the Mortgage?
If the house was bought during the marriage, having only one spouse on the mortgage does not necessarily make the house that spouse’s separate property. Mortgage liability and the characterization of property as separate or community property are different issues. The mortgage generally determines who is contractually responsible to the lender. Whether the house is separate or community property depends on Texas marital-property rules, including when and how the property was acquired.
That distinction also matters after divorce. A divorce decree can assign responsibility for paying a mortgage between the spouses, but it does not by itself change the lender’s contract. If both spouses are borrowers, the spouse who gives up the house may remain obligated to the lender unless the loan is refinanced or the lender otherwise releases that spouse.
What If Only One Spouse Is on the Deed?
The name on the deed can be important, but it does not necessarily answer every question about whether a house is separate or community property. The timing and manner of acquisition can matter, as can issues involving premarital ownership, gifts, inheritance, and marital property agreements. Texas law also presumes that property possessed during or at the dissolution of marriage is community property unless the spouse claiming separate property proves that character by clear and convincing evidence.
For that reason, resolving a disagreement over the house may require reviewing deeds, purchase and closing documents, marital agreements, and records showing where the money used to acquire the property came from. For example, a spouse claiming that a home purchased during marriage was acquired entirely with separate funds may need records that trace the purchase money to a separate-property source.
What If One Spouse Owned the House Before Marriage but Both Spouses Paid for It During Marriage?
Paying expenses associated with a spouse’s separate-property home does not automatically create an ownership interest in the house. A reimbursement claim may arise, however, when property of one marital estate has been used to confer a qualifying benefit on another marital estate and the statutory requirements for reimbursement are met.
Texas law recognizes reimbursement claims for specified contributions between marital estates, including certain payments that reduce qualifying debt or fund capital improvements. Reimbursement and ownership are separate issues. A house may remain one spouse’s separate property even though a reimbursement claim involving the property becomes part of the divorce.
For example, if one spouse owned a house before marriage and community funds were later used to reduce the principal of debt secured by that separate-property home, the community estate may assert a reimbursement claim even though the house itself remains separate property. Not every mortgage, tax, maintenance, or household payment creates a reimbursement claim. The type of expenditure, the source of the funds, and the benefit received by the other marital estate can affect the analysis.
How Does the Court Decide Who Gets a Community-Property House?
The court decides who gets a community-property house by applying the same “just and right” standard that Texas Family Code section 7.001 requires for the entire community estate, meaning the property the spouses acquired during the marriage. There is no fixed rule tied to child custody. Instead, the court weighs several factors identified in Murff v. Murff, 615 S.W.2d 696 (Tex. 1981), including each spouse’s earning capacity, health, age, and education, and the size of each spouse’s separate property (property owned before the marriage or received individually as a gift or inheritance). Which parent has primary custody of the children is one factor among these, not a rule that automatically awards the house to that parent.
Can the House Be Sold, Awarded to One Spouse, or Refinanced?
Yes. The court will usually reach one of two outcomes for the house. It may award the house to one spouse and balance the division by giving the other spouse a larger share of other assets, such as a retirement account or bank funds, equal to the house’s equity (the home’s value minus any remaining mortgage balance). Or the court may order the house sold and the net proceeds divided between the spouses as part of the overall property division. The amount of equity in the house often affects which option is practical, since a spouse who keeps the house may need to refinance the mortgage into their own name or pay the other spouse a share of the equity directly.
What Happens If the House Is Sold?
If the court orders the house sold, then the judge may need to address the following unless the parties can reach an agreement between themselves:
- Appoint or establish a method for selecting a broker
- Set a date by which the house must be listed
- Set parameters for the list price and sale of the house
- Determine who will pay the mortgage, taxes, and insurance until the sale closes
- Determine who will remain in the house until closing
- Determine who is responsible for the upkeep of the house until closing, including payment of the utilities
- Determine the percentage of the net proceeds to be awarded to each party at closing
These details can be especially important when the spouses must continue cooperating after the divorce to prepare, list, and sell the property.
What If One Spouse Is Awarded the House and Needs to Refinance?
It is not uncommon for one party to want to remain in the house after the divorce with the other party wanting their portion of the equity sooner rather than later. In such situations, the existing mortgage may need to be refinanced or other financing involving the available equity may be considered. Whether refinancing is practical depends on the loan terms, the spouse’s ability to qualify, the available equity, and any deadlines stated in the divorce decree.
For example, if both spouses signed the original mortgage but the divorce decree awards the house and mortgage responsibility to one spouse, the other spouse can remain contractually liable to the lender until refinancing, assumption, or another lender-approved release removes that obligation. The decree can allocate responsibility between the former spouses, but it does not by itself rewrite the mortgage contract.
Can One Spouse Stay in the House While the Divorce Is Pending?
Yes. Who lives in the house while a Texas divorce is pending can be addressed separately from who ultimately receives the property. Texas courts may issue temporary orders concerning the preservation of property and the parties’ use of property while a divorce is pending. Temporary orders can therefore address which spouse has temporary use and possession of the family home, as well as expenses associated with the property. When children are involved, their living arrangements and needs may also be part of the broader temporary-order issues before the court.
Temporary possession of the home does not necessarily determine who will receive it in the final decree. For example, a parent may temporarily remain in the home with the children while the divorce is pending, but the final decree may later award the house to either spouse or require it to be sold.
What If the Spouses Agree About the House?
The spouses do not have to ask a judge to decide every issue involving the family home. They may be able to reach an agreement through negotiations or mediation regarding who will keep the house, whether it will be sold, and how the equity and expenses will be handled. The details matter. If one spouse will keep the house, the agreement may need to address refinancing, payment of the other spouse’s awarded portion, deadlines, and the documents needed to complete the transfer.
If the house will be sold, the agreement can address the broker, listing date, price, possession before closing, payment of ongoing expenses, and distribution of the net proceeds. Addressing those details before the final decree can provide clearer instructions for both spouses after the divorce.
What Should a Texas Divorce Decree Say About the House?
A Texas divorce decree should clearly explain what will happen to the house and what each spouse must do to complete that part of the property division. The specific terms will depend on whether one spouse keeps the home or the property will be sold.
If one spouse keeps the house, the decree may need to address:
- Possession of the home: The decree should identify which spouse will remain in the property and when the other spouse must leave.
- Mortgage responsibility: The decree should identify who is responsible between the former spouses for making mortgage payments and other required property-related payments after divorce. If both spouses remain liable to the lender, the decree should also address any required refinancing or other steps intended to remove the departing spouse from the loan.
- Refinancing requirements: If refinancing is required, the decree should establish a deadline and explain what happens if the spouse keeping the home cannot obtain new financing.
- Payment of equity: The decree should state how much, if anything, must be paid to the other spouse and when that payment is due.
- Required documents: The spouses may need to sign deeds, loan documents, or other paperwork necessary to complete the transfer.
If the house will be sold, the decree may also address when the property must be listed, how a real estate broker will be selected, how pricing and offers will be handled, and who may remain in the home before closing. It should also explain who is responsible for the mortgage, property taxes, insurance, utilities, repairs, and other expenses while the property is on the market.
The decree should state how the net sale proceeds will be divided and provide clear deadlines for any steps that must occur after the divorce. Specific terms can make each spouse’s obligations clearer if they must continue working together to sell, refinance, or transfer the property after the divorce.
What Happens If a Former Spouse Refuses to Sell or Refinance?
Problems can arise after the divorce when a former spouse refuses to take an action required by the property division. Texas Family Code Chapter 9 provides a procedure for enforcing a divorce decree that divides property. A former spouse affected by the decree may file a suit to enforce in the court that rendered the decree. The court may enter further orders to enforce, implement, or clarify the property division, but it generally may not alter the substantive division made in the final decree.
For example, enforcement issues may arise when a former spouse refuses to sign documents required for a sale or transfer, does not cooperate with a court-ordered listing, or fails to perform another obligation stated in the decree. Depending on the obligation involved, Chapter 9 also provides remedies that can include orders for delivery of property or, in qualifying circumstances, a money judgment for damages caused by failure to comply with the decree.
Can a Texas Court Appoint a Receiver to Handle the House?
It is important for the court’s decree regarding the house to address implementation and enforcement appropriately. Depending on the circumstances and available legal authority, appointment of a receiver may become an option if the ordered disposition of the property cannot otherwise be completed.
Appointing a receiver is generally a significant step and should not be viewed as the routine way a court disposes of real property in the parties’ community estate.
Depending on the circumstances, disputes that may lead to a request for a receiver can include:
- When the former spouses cannot agree on terms necessary to complete an ordered sale
- When disputes over the sales price prevent the sale from moving forward
- When a real estate broker cannot be agreed upon as required
- When a former spouse refuses to list the house for sale
- When a former spouse is unable to refinance as originally contemplated and the decree provides for another disposition of the property
A receiver acts under authority granted by the court to take specified actions involving the property. Whether receivership is available and what authority a receiver may exercise depend on the orders and circumstances involved.
Is a Separate Partition Lawsuit Always Required to Sell the House?
No. A separate partition lawsuit is not automatically required simply because spouses disagree about what should happen to a community-property house during a divorce. During the divorce proceeding, the court has authority to divide the community estate in a just and right manner. That property division can address what will happen to community real estate.
A partition action is a different legal mechanism that may become relevant when people continue to jointly own property outside the ordinary division of the community estate, including certain disputes involving property that remains undivided after divorce. Whether the proper procedure is a property division in the divorce, enforcement of an existing divorce decree, or a partition action depends on the status of the property and the existing court orders.
Contact Bailey & Galyen Today
If you have questions about how a family home will be handled in a Texas divorce, contact Bailey & Galyen to schedule an appointment with one of our family law attorneys. Separate and community property, equity, reimbursement claims, refinancing, temporary possession, and enforcement can all affect how the family home is handled in a Texas divorce.
If you find yourself asking Who gets the house? consider giving Bailey & Galyen a call to schedule an appointment with one of our family law attorneys.
Frequently Asked Questions
1. Can my spouse get half of a house I bought before marriage?
A house you owned before marriage is generally your separate property, so the divorce court does not divide the house itself as community property. However, reimbursement or other financial issues can arise if community funds were used during the marriage for qualifying expenditures involving the property.
2. Does my spouse own the house if only their name is on the mortgage?
Not necessarily. The mortgage identifies contractual obligations to the lender, while Texas marital-property rules determine whether property is separate or community property. A home acquired during marriage may still be community property even if only one spouse signed the mortgage, depending on how the property was acquired and any applicable exception.
3. Can a Texas judge make spouses sell their house during a divorce?
Yes. A Texas divorce court can provide for the sale of a community-property home as part of its just-and-right division of the marital estate. The court may also award the house to one spouse while allocating other assets, liabilities, or equity as part of the overall division. If one spouse keeps a jointly financed home, refinancing may be required or addressed in the decree, although the court cannot require a lender to approve a new loan.
4. What happens if my ex does not refinance the mortgage as ordered?
A former spouse can seek enforcement of a property provision in the divorce decree when the other spouse fails to comply with an ordered obligation. The enforcement court may issue orders that implement or clarify the existing property division, but it generally may not use enforcement to create a new substantive division of the property.
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