Selling your house during a divorce can amplify the emotional toll, adding another layer of complexity to an already draining and time-consuming process for you and your family. Making the decision to sell the family home is a significant step, and when combined with the decision to divorce, it compounds the challenges you face. It’s a scenario fraught with difficulties, both emotional and practical. While it may be the best course of action, navigating through these overlapping, often prolonged, and financially demanding processes is never straightforward.
Most of our clients going through a divorce choose to sell their home with their spouse. During a marriage, if a house is acquired, it automatically becomes part of the community estate in divorce proceedings, meaning it’s subject to division between both parties. Often, spouses determine that selling the family home is the optimal solution amid divorce proceedings, benefiting all involved parties.
Emotional and practical considerations of selling your family home
Your family home represents not only the most significant investment and asset that you and your spouse own but also is the site of Christmas celebrations, birthday parties, kids’ sleepovers, and many good memories. These memories make it difficult for many people to part with the family home despite being the most logical decision to move towards if you and your spouse cannot agree to sell the home in a situation where it is “too much house” for one you (either in terms of size or mortgage payment) a judge may have to make that decision for you and order that the house goes on the market.
Often, the best reason to sell the family home is just wanting a fresh start. Along with those happy sorts of memories that I mentioned a moment ago are less pleasant memories. Even if you can afford the mortgage and even if the home is something that you value, it may still be a good idea to move on from it if you cannot separate the house from your past marriage.
Whatever circumstances you find yourself in, I think it is worthwhile for you to walk through an analysis of the issues surrounding selling your home during a divorce in Texas. The problem with this topic is that you can get a lot of different opinions on the subject, but very few of them consider all of the relevant elements of both divorce and selling a house. Thankfully, the attorneys at the Law Office of Bryan Fagan are ready to engage in a thorough discussion on this topic with you today.
Are you stuck in neutral, or worse- reverse, during your divorce?
If you’ve been grappling with how to proceed since the idea of divorce first crossed your mind or since receiving divorce papers from your spouse, you’re not alone in feeling this way. Many individuals in your position experience the pressures of divorce and subsequently feel overwhelmed about the next steps. Add in stresses associated with your kids, bills, work, and what to do with a house, and you have a pretty tough situation to walk into.
Paralysis by the analysis is a way of saying that you feel like you can’t move one way or the other because you spend all your time and effort trying to think about your options. If you can’t make up your mind on which direction to go with your case and your life, then you won’t be able to make a definitive move one way or the other. This is true during a divorce case or during any additional time in your life.
What you will find in a divorce is that sometimes your spouse or the judge will force your hand and propel you in a particular direction. The need to start fresh, pay off debt, or find a new place that you can afford may all be relevant considerations for you to make during a divorce. If selling the house is the main issue you are concerned with, then I suggest that you keep in mind the following tips and tricks for selling a. house during your Texas divorce.
Don’t underestimate the difficulties associated with divorce or selling your family house.
As we have already mentioned, very few people make it through a divorce and the selling of a home without looking back and wondering what they could have done differently to have made things a little easier for themselves. It is common to experience a stress overload during the divorce and even more common to experience stress associated with selling a house.
The trouble is that you own that house along with your spouse. So, you have to coordinate the selling of your most valuable asset with a person you are not on the best terms; if this sounds like an explosive situation, you would not be incorrect. If the circumstances of your life line up where everyone should sell the house during a divorce, then you will need to be able to work together with your soon-to-be ex-spouse on how to do this.
Sometimes just deciding with your spouse can be enough to cause you to feel less stressed out. If you have children, then you are going to be concerned with their well-being above everything else. Knowing whether or not you will be selling your house can make it easier to talk to your kids about their future and where they will be living after the divorce. Remember that your kids will be going through a transition just like you will after the divorce finishes up.
Financial elements will impact decision-making associated with deciding whether to sell your house.
I think the most prominent and logical place to start when determining whether or not you need to sell your house during or after a Texas divorce is whether or not you can afford to pay the mortgage on only your salary. The same question needs to be asked of your spouse, as well. Usually, you and your spouse will apply for financing your house together based on each of your incomes. It would not be uncommon for neither of you to have a salary that would allow you to afford your current mortgage.
Evaluating housing situation
Next, I would recommend that you all look at your overall financial picture to see if the house fits into your new reality. For instance, even if you can pay the mortgage based solely on your salary, you need to consider whether or not it will cause you to win in the long term. For instance, if your mortgage payment represents fifty percent of your take-home pay each month, then that leaves you very little wiggle room to save for retirement, your kid’s college, or pay down other debts. That is a recipe for treading water, at best.
At worst, not selling your house to maintain some degree of normalcy may set you back years and years in your emotional and financial growth after your divorce. Consider what would happen if you decide to remain in the house and the water heater and the air conditioner break down in the same week. Where would you get the money to make those repairs if half of your monthly income is going towards paying a mortgage? You would be in a challenging position. Anything that can go wrong often will go wrong when it comes to circumstances surrounding a divorce.
Allowing ex-spouse to stay in family home
Let’s flip the situation for a moment. Consider this situation if you are a father whose three young children will end up living most of the time with your ex-wife. You very much want those kids to be able to remain in the house where they grew up. Against your better judgment, you decide to allow your kids and your ex-wife to stay in the place. One concern that you had was that your ex-wife is only earning around $30,000 per year. Even with child support assistance, you know that she does not have much wiggle room in her budget.
On top of that, she is the party (at least under the orders of the divorce decree) that is solely responsible for the mortgage. The court has ordered her to make all mortgage payments in exchange for her continued occupancy of the house. Your equity stake in the property has been settled with payment from other assets in the community estate, so you’re all squared away. Wrong. Let’s see how the decision to allow your ex-spouse to remain in the house could be wrong.
Selling the house is stressful, but remaining in the place could be worse.
Suppose that your ex-spouse loses her job and can no longer afford to pay the mortgage. It would be one thing if you were no longer liable on that mortgage, but divorce has no impact on that. Even though your divorce decree specifically states that your spouse is 100% responsible for paying the mortgage, this is true. Unfortunately, the divorce decree has no impact on your legal responsibility under the note. Whatever lender holds your message will be looking to you for payment on it regardless of whether or not your divorce decree states you are off the hook.
Imagine the distress of allowing your ex-spouse to stay in the house, moving out yourself, only to find out they’re not paying the mortgage and foreclosure looms. Many face this post-divorce predicament. To avoid such liability without benefit, consider a Special Warranty Deed transferring your share of the house to your ex-spouse, ensuring legal separation and possibly offering peace of mind.
Regarding your mortgage liability, consider two options. First, your ex-spouse can apply to refinance the mortgage, but approval isn’t guaranteed. If denied or not pursued, you’re vulnerable if payments cease. To safeguard against this, request a Deed of Trust to Secure Assumption from your spouse. This document grants you foreclosure rights if she defaults, providing a degree of protection.
Conclusion
Selling a house during a divorce is a multifaceted endeavor that underscores the complexities inherent in navigating both legal and emotional terrain. It demands careful consideration, patience, and a willingness to confront challenges head-on. While the process may be arduous and emotionally draining, it also presents an opportunity for growth and a fresh start. By approaching the situation with empathy, communication, and support, couples can mitigate the stress and uncertainty associated with selling their family home amidst a divorce, ultimately paving the way for a smoother transition into the next chapter of their lives.
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Other Articles you may be interested in:
- Selling Your Home in a Divorce: Tips to Stay Calm and Move On
- Property Settlement Guide: How Assets are Divided After Divorce
- Tips on helping you decide whether or not to sell your home in a divorce case
- Your home in a Texas Divorce: How to decide whether to sell or stay
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- How am I going to Pay for My Texas Divorce?
- 7 Important Ways to Financially Prepare for Your Texas Divorce
- What are the Tax Implications for Selling the Marital Home?
- Can you sell a house during a divorce?
- Selling your home during a divorce in Texas
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
