In terms of physical property, there is no more important investment that you can make than buying a home. You need to consider the actual dollars spent on purchasing the home and furnishing the inside and outside of it.
Another powerful consideration to make is that the home will shelter and protect your most valuable non-property asset- your family. The family home obviously has more than a dollar value attached to it- there is sentimental, emotional value at play as well.
What happens in a divorce where a husband and wife decide that they can no longer be married and that a divorce is a necessity for them?
How will the family home be divided up and how will the court determine who gets to remain in the home and who has to leave? The attorneys with the Law Office of Bryan Fagan, PLLC would like to share our thoughts on the subject based on our years of experience representing clients in family law cases in Texas.
The most logical place to start in this writer’s opinion is to examine how the laws of the State of Texas impact a divorce case and what it means for you, personally.
Texas is a Community Property State
The heading for this section says it all. Community property means that most property acquired by both the husband and wife during the marriage belongs to the community estate and is subject to division at the time of divorce.
Obviously, the Court cannot take a giant knife and split the house down the middle. Short of this the Court would most likely take into consideration which party is financially equipped to take on the house payments on their own and which party is better equipped to have the child of the marriage (if any) live with them primarily.
If at all possible the children should remain in the family home so as to minimize any additional disruptions to their lives.
So what results are possible when it comes to the family home?
One spouse remains in the home, the other exits with cash in hand
As discussed above, if one party to the divorce is able to make the house payments on their own they may be able to stay in the home after the divorce has been finalized. To make sure that the scales (in terms of property division) are not weighed too heavily in their favor a court may award other property (retirement assets, etc.) to the spouse who is not awarded the family home. If this scenario plays out the spouse who remains in the home will need to refinance the mortgage so that a loan can be created in their name only.
Speaking of other assets to the marriage, the spouse who is able to remain in the home will typically pay their soon to be ex-spouse the equivalent to the equity that exists in the home currently.
For example, if $50,000 is left owed on the mortgage and the home can sell for $200,000 there is approximately $150,000 in equity available to the parties. What may occur is that one party will voluntarily agree to pay to the other party one half of the $150,000 in order to remain in the home.
I have seen clients of the Law Office of Bryan Fagan, PLLC do everything humanly possible to remain in their martial home. One former client of ours traded upwards of 90% of his retirement accounts as well as future spousal support payments in order to keep the home.
Again, this goes back to my point from the opening of this blog post: people attach differing levels of value to a home. This person wanted to make sure that when he saw his son it was in the home that his son grew up in. For a person who was going through some rapid change in his own life, the house represented a safe zone where he himself could be comfortable and secure.
For those of you who are already thinking about the potential liability facing either the spouse who buys the other spouse out of the family home or the spouse who is actually bought out, an experienced family law attorney can help facilitate the transfer of the home from mutual ownership to sole ownership.
The process is not difficult but it does require some specific legal documents to be drafted and filed with the clerk in the county where the property is located.
Sell the home and split the equity
If neither party to a divorce wishes to remain in the home then the house can be sold and the proceeds from the sale split according to the court’s order or the parties’ own agreement. This is especially common in older divorcing parties whose children are already out of the home or in divorces where the parties never had children in the first place.
You will also see this sort of arrangement in divorces where neither party is able to afford the mortgage payments on their own once the divorce is finalized.
Again, this is an area where having an experienced Houston family law attorney can benefit you a great deal. It is difficult enough for two married persons to agree on how to put their home up for sale and all the steps that are required that lead up to this decision.
When the spouses can’t even sit in a room together it is nearly impossible for them to agree on how to sell a home. A family law attorney can create language that becomes a court order on the guidelines to the sale of the home. This includes a timeline that must be followed and instructions on who will pay for what and how the proceeds from the sale will be distributed.
In Need of Family Law Advice? Contact the Law Office of Bryan Fagan, PLLC
If you are in need of a listening ear when it comes to a family law matter please do not hesitate to contact the Law Office of Bryan Fagan, PLLC today. Our attorneys will meet with you at your convenience six days a week and offer free of charge consultations. Divorce is never easy but the attorneys with the Law Office of Bryan Fagan, PLLC aim to make this process as straightforward and worry free as possible.
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