Many people will tell you that a divorce, when it comes right down to it, is a transaction. It is attempting to gain as much for yourself and limit your exposure in terms of ceding your assets to your spouse. Bank accounts, retirement funds, investments and yes, your family home, fall into this sort of thinking with relative ease.
Your children, those same people may even say, fall into the same sort of transactional category. Your five-year-old son suddenly becomes an item to divide and allocate rather than the little kid who loves dinosaurs and baseball. You and I may have a different opinion on this from your neighbor or your boss. That’s how we humans work- we’re complex in our ability to formulate and hold opinions on any given subject.
The fact remains that one of those subjects that is a point of contention in many divorces is the family home. There are particular legal and financial reasons for this fact, but there are equally as persuasive relational, emotional and psychological reasons as well. That’s what makes the family home such an interesting topic in my opinion, at least in the context of a divorce. Your home melds together the financial, analytical and rational arguments of a divorce with the emotional, relational and “heart-based’ arguments. It’s a hybrid, for lack of a better word.
So how should you approach whether to remain in the house, allow your spouse to do so or to sell the home after your divorce? As we’ve already discussed this is a subject that has many, many different components to it. You are not well served to approach it only from one particular standpoint.
As any parent will tell you- completely disregarding one line of thought in favor of the other is not going to accomplish much. If your child is sad for seemingly no reason don’t just tell them they’re silly for being sad- allow them to “feel” their feelings. I would give similar advice in regard to your home. Allow yourself to feel those feelings of nostalgia, love, and warmth while balancing the rational and financial aspects as well.
Let’s review a few factors that the attorneys with the Law Office of Bryan Fagan find to be particularly important when deciding how to negotiate during a divorce in regard to your home.
Who, if anyone, can remain in home from a financial perspective after the divorce?
Ultimately the buck stops with one questions- can you or your spouse afford to remain in the house after the divorce? This means that your income alone will have to take over payments on the mortgage without the assistance (if any) of your spouse. You may know what the monthly mortgage payment is but do you know how much property taxes, home owner’s fees or the other costs of running the household are? Learn this before you stake your position of “I need to stay in the house” during negotiations.
You want this house to remain a blessing to you and your family- not a curse. If all of your income is utilized to pay a mortgage and pay other bills associated with the house what will that do to your other goals?
If you want to be able to pay off debt, save for retirement or otherwise spend the money on your children a large mortgage will keep you from doing any of those things well. Sometimes discretion is the better part of valor. Allowing your house to be sold if you cannot afford to remain in it does not have to be the worst thing in the world for you for your family.
Refinancing the Mortgage into your name only
A subject that comes naturally from our previous section is whether or not you can handle a refinance of the mortgage. It is almost a given that your current mortgage bears both your and your spouse’s names. In order to remove their name from the mortgage, you will need to refinance, be approved by a lender and get a whole new loan.
In order to do so the mortgage lender will look at your income, your work history and all the factors that were reviewed when you and your spouse applied for the initial mortgage on your home.
If you are, for example, a long time stay at home mom who is only now getting back into the workforce due to necessity you may not have the income history in order to be approved for a new loan. This can be true even if you have a college degree and just haven’t utilized it in order so that you could stay at home and care for your children.
What is being given up in order for you to stay in the house
Negotiations are like an algebra equation. There will not be new assets, debts or children (in most cases) that come about during a divorce negotiation. What was in place, in the beginning, will also be in place at the end of your case. The key is understanding what you end up with and what your spouse does.
A lot of times a party in a divorce feels strongly about one item or another and will give up other items or assets to secure the item that he or she covets. If your item of choice is the house then it’s likely that you will negotiate strongly for it.
In doing so you may find yourself in a position where you forsake a portion of your spouse’s 401(k) or the ability to earn spousal support for a period of time after the divorce.
These are just examples but the point is a real one that I am trying to illustrate: to win your house you may be forced to lose in other areas. It’s your job (and your attorney’s) to determine whether or not the “juice is worth the squeeze”.
Questions about your family home in the context of a divorce case? Contact the Law Office of Bryan Fagan
To learn more about the process of selling your house after a divorce case, or to learn how to help yourself remain in the house, please contact the Law Office of Bryan Fagan. A consultation with one of our licensed family lawattorneys can answer your questions. Our consultations are free of charge and are available six days a week.
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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.