Dividing up the marital home in a Texas Divorce
There is a fatigue that is associated with
divorces that is absolutely real. On the emotional side of things, your life and
your family’s life is being turned upside down for as long as the
divorce goes. Even once the divorce is complete your life will never be
the same again, for better or worse. From a physical perspective you are
probably not sleeping as well and are busier than ever with your child’s
activities. Throw on some court dates,
mediation dates and meeting with your attorney and a divorce puts you through the
ringer early and often.
With that said, if you and your spouse are selling your
home as a part of the divorce then that stress level is ratcheted up a notch
or two. Most likely your largest investment the place you and your family
have laid your heads at night for many years your house has financial
and emotional components that are to be taken seriously.
While your attorney is an expert in the law, it is critical that they also
have knowledge of how to structure your divorce in terms of selling the
home and making sure that your rights are protected during the process.
The attorneys with the
Law Office of Bryan Fagan would like to share some information on this subject that often confounds
and disrupts a divorce case.
What can you do as a homeowner to make the process of selling your home easier?
When it comes to selling your house it is best to take off the “emotional”
hat you had been wearing for dealing with your family and other personal
matters and to put on the “business” hat that you might ordinarily
reserve for the workplace. Essentially by treating the sale of the family
home as a business transaction rather than an emotional one, you can focus
on what you and your spouse need to accomplish.
How do you get the house on the market and sold in short order? By making
realistic decisions, understanding your options and then seeking the help
of a realtor who has handled putting a house on the market for people
going through a divorce. Let’s break down each of these items one by one.
How to make realistic decisions when selling a home
In many divorces, one spouse is awarded the home and has the responsibility
to refinance the loan into their name only. The profit or loss from the
refinance is then split between the parties. The spouse who leaves the home is “bought
out” of their share of the equity and has their name removed from
the deed to the home.
After that point, in some instances the home is sold and in others the
home is held onto for a longer period of time. Ultimately, the mortgage
company does not care whose name appears on the mortgage. If you are the
spouse who is no longer going to be living in the home it is understandable
that you will no longer want to be responsible for the loan.
However, in situations where there is no mortgage on the home and one spouse
plans to keep the home as part of the divorce
settlement there is a straightforward procedure to employ. A
Special Warranty Deed will be drafted that is recorded wherein the name of the spouse remaining
in the home is listed as the owner. If you are the spouse who is no longer
going to be living in the home then your name is removed on this deed.
If your home has a mortgage on it then the situation becomes a little more
complicated. The biggest question to answer in this situation is whether
you or your spouse has the financial wherewithal to qualify for a mortgage
in their individual name. Obviously you need to consider what your life
is going to be like after the divorce and if you believe you can take
on the responsibility of the mortgage. The other consideration to make
is that a lending company/bank/mortgage company will evaluate you from
the standpoint of whether or not you are credit worthy.
Who gets primary conservatorship of the kids may have a leg up
If you are awarded primary
conservatorship of the children then you would also have an advantage, hypothetically
in being awarded the home if you want it. The stability of the family
home for the children and the opportunity to engage in the same social
circles and school environment is a huge advantage for you to keep the
home. However, if you are a stay at home mom, while you may end up being
named the primary conservator it is unlikely that you would qualify to
refinance the mortgage into your name as you have not had an income for years.
From my experiences, showing a lender that you will earn a certain amount
of money each month in
child support will not suffice either in most situations. Obviously you will need to
be guided on the law and how it applies to you and your ability to refinance
a mortgage and if it is even in your best interest to do so. It is understandable
that if you are awarded primary conservatorship of the children that you
will want to give them the comfort of being able to remain in the home.
However, if this is something that is beyond your capabilities from a
financial perspective it is best to consider whether or not selling your
home and taking a chunk of money in equity with you is a better decision.
Part Two of the Law Office of Bryan Fagan’s advice on selling a home
coming up tomorrow
Anyone familiar with my blog posts on this website can attest to the fact
that on occasion I let a subject get the best of me where one article
will not suffice. This one dealing with selling a home in connection with
a divorce is no difference. Please be sure to take a look at our second
post in this series set to be publish tomorrow.
If you have any questions on this subject please feel free to contact the
Law Office of Bryan Fagan. Our licensed
family law attorneys are available six days a week to meet with you in person to
answer your questions and to tell you more about our office and the services