Not only will you and your spouse have to decide if either of you will remain in the home after the divorce, but in the event the home has to be sold, a decision will have to be made as to who should be hired to sell the house and how any potential equity will be divided between the two of you. The following are the two primary ways spouses tend to handle their marital home in a divorce.
Selling the home
You and your spouse can always agree to sell the home and split any equity left after your mortgage has been paid. This is perhaps the "cleanest" choice and is likely what a judge would order you and your spouse to do if your case were to make it to a trial.
The reasons judges like the idea are likely the exact reasons it may appeal to you. There is no confusion about what to do or how to do it. The house is put up on the market sold as quickly as possible, and the liability of a large home loan is no longer floating around, waiting for you or your spouse to grab hold of it and take responsibility for its payment.
Downsides include the obvious that both you and your spouse and any children you may have will all need to find a new place to live. During a time like divorce- with so much uncertainty and instability involved- removing one of the few stable environments can be difficult.
One spouse deeding the house to the other
The other option for the marital home in a divorce is to have one spouse leave the residence and deed their interest in the house to the other spouse. If you are the parent who becomes the managing conservator of the children, you will likely be given the option to remain in the home if you would like to or afford the payments on the home yourself.
The process to deed the home from one spouse to the other is a step in the process that is often done incorrectly or missed altogether if a family law attorney is not hired to do your divorce. A Special Warranty Deed is signed by the spouse who will be leaving home, and you would then own the home free and clear of your ex-spouse. That deed is then recorded with the county clerk or wherever real estate records are held in the county where you reside.
However, we have to mention a second part of being awarded the home in your divorce. If you are awarded the house, you will likely need to refinance your mortgage. This is done to remove your spouse's name from the loan so that they are no longer liable if payments on the loan are not made in a timely fashion.
What happens if you cannot refinance the mortgage? This is likely if your credit score, income history, or another factor will not allow you to refinance. Both spouses would remain on the hook for the debt associated with the home mortgage- even though your spouse may have just deeded their entire interest in the home to you. Talk about your wrong trade-offs.
The home mortgage lender does not care what your divorce decree says, either. Even if your spouse is awarded no part in the home in your divorce case, the lender holds paperwork that says they are responsible until and unless the loan is paid in full.
Deed of Trust to Secure Assumption
To put each spouse on equal footing, a lawyer can assist you by drafting a document known as a Deed of Trust to Secure Assumption. If you are the spouse who will be remaining in the home, you will be assuming the debt on the mortgage and the responsibility to pay it moving forward. In exchange for their signing over their interest in the home to you, your spouse will be able to foreclose upon the house if you miss payments in the future.
This gives them the option to try and buy the house back and then refinance on their own (Removing your name from home) or to pay off the note themselves. This is essentially a second lien on the house held by your ex-spouse.
This may seem not very easy to an extent, but the steps associated with this paperwork are intended to protect you and your ex-spouse's interests moving forward. What you will want in your divorce is to have peace of mind that the decisions you make will benefit you in the long run.
As your house is perhaps the most important investment you will ever make in your life, it is essential to handle it in your divorce the correct way. Your attorney will walk you through your options and help you decide your and your family's best interests.
Questions about your home regarding a pending divorce? Contact the Law Office of Bryan Fagan, PLLC
No matter how your house is dealt with in your divorce, you should know that it is normal to feel apprehensive no matter what you would like to see happen. The advice of an experienced attorney is critical to assisting you through the many steps associated with the sale, refinance, or conveyance of your marital home.
The attorneys with the Law Office of Bryan Fagan, PLLC, are available six days a week to meet with you to discuss any questions you have regarding your marital home in the context of a divorce. A consultation is free of charge and is available six days a week.
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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer
The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding divorce, it's essential to speak with ar Spring, TX Divorce Lawyer right away to protect your rights.
A divorce lawyer in Spring, TX, is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC, handles Divorce cases in Spring, Texas, Cypress, Spring, 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.