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Keeping the house in divorce is one of the most emotionally and financially charged issues couples face in a Texas divorce. A home represents more than just real estate—it holds memories, provides stability, and often serves as a major financial asset. In Texas, whether you can keep the house depends on how and when it was acquired. Was it purchased jointly during the marriage, or did one spouse own it before tying the knot? These distinctions between community and separate property are key. When both spouses want to stay in the home, things can quickly become complex. Understanding how Texas law treats property division is essential if you’re serious about keeping the house in divorce and protecting your long-term interests.
Dividing property in a Texas divorce can get tricky when the house is involved. For many couples, it’s their most valuable asset. It also carries emotional weight, especially when children are in the picture. Understanding how Texas law handles community and separate property is key to knowing what may happen to the house.
Understanding Property Division in Texas
Texas is a community property state. That means most assets acquired during the marriage belong to both spouses equally. The court starts with the assumption that property should be split evenly, but judges don’t always divide things 50-50. Instead, they look at what’s “just and right” based on the details of the case.
Property falls into one of two categories:
- Community property – acquired during the marriage
- Separate property – owned before the marriage or received as a gift or inheritance
This distinction plays a major role in how the court decides who gets the house.
What Makes a House Community Property?
If the couple bought the house during the marriage using joint income, it’s likely community property. It doesn’t matter if the title is in only one spouse’s name. What counts is when and how the property was paid for.
Key Signs the House Is Community Property
- Bought during the marriage
- Mortgage payments came from a joint account
- Both names are on the deed
- Refinanced during the marriage using shared income
Even if one spouse moved out long before the divorce, the property may still belong to both unless a legal agreement changed that.
When Is a House Separate Property?
A home qualifies as separate property if one spouse:
- Bought it before the marriage
- Inherited it
- Received it as a gift
- Bought it during the marriage using only separate funds
The burden of proof is on the spouse claiming it as separate property. That means they must show clear and convincing evidence, like purchase records or gift documentation.
Tracing Separate Property
If a spouse claims they used separate funds to buy the house, they must trace those funds. That involves showing exactly where the money came from and that it wasn’t mixed with community money. If separate funds were deposited into a joint account, proving ownership becomes harder.
What If One Spouse Paid for the House Before Marriage?
Sometimes a spouse starts buying a house before the marriage and finishes paying for it while married. In this case, the house might have both separate and community components. The initial investment might count as separate property, but any payments made during the marriage with shared income could make part of it community property.
This split ownership leads to reimbursement claims during divorce.
Reimbursement Claims: Who Owes What?
When community property is used to pay for a separate property house, the other spouse may request reimbursement. The same goes for using separate funds to improve a community home. Courts can’t award ownership of separate property, but they can adjust the division to make things fair.
Common Reimbursement Situations
- Using community income to pay a mortgage on a separate home
- Spending separate funds to renovate a jointly owned house
- Paying property taxes or insurance using shared accounts
The court may award a reimbursement claim to balance things, though the actual outcome depends on the case details.
How Courts Decide Who Gets the House
If the house is clearly community property, the court can award it to either spouse or order it sold. In some cases, one spouse gets to keep the home, especially if children live there and need stability. The other may receive other assets or a cash buyout to balance the division.
When only one spouse owns the home as separate property, the court won’t award part of it to the other. However, it may consider reimbursement or other factors when dividing assets.
What Happens When the House Is in Only One Name?
The name on the title doesn’t always determine ownership. In Texas, what matters most is how the property was paid for and when. A house in one spouse’s name can still be community property if it was bought during the marriage with shared income.
If it’s separate property, the spouse listed as the owner usually keeps it. The other spouse might still be entitled to reimbursement.
Can Both Spouses Keep the House?
It’s rare but possible. Some divorcing couples agree to keep the house temporarily:
- One spouse lives there with the kids until they turn 18
- They plan to sell the home later and split the profits
- They want to wait until the market improves
This requires trust and a solid written agreement. Otherwise, conflict may arise down the line.
Selling the House During Divorce
Many couples end up selling the house and splitting the proceeds. This often happens when neither spouse can afford to keep the home on their own or when both want a clean break. Before the sale, both sides must agree on a listing price, agent, and how to divide any profits or debts.
Who Pays the Mortgage During the Divorce?
While the divorce is still in progress, both spouses remain responsible for any mortgage in their names. Temporary orders may set rules for who pays the bills and who stays in the home. Ignoring these obligations can affect credit scores or lead to foreclosure.
Keeping the House: Pros and Cons
If one spouse wants to keep the house, they must usually refinance and buy out the other’s share. This only works if their credit and income qualify for a new loan.
Pros of Keeping the House
- Stability for kids
- Familiar neighborhood and routines
- Emotional attachment
Cons of Keeping the House
- High cost of upkeep
- Risk of foreclosure if income drops
- Ties to the ex-spouse’s name or finances if not refinanced
Sometimes it makes more sense to sell the house and use the proceeds for a fresh start.
What to Do Before Making a Decision
Dividing property is a legal and financial decision, not just an emotional one. These steps can help:
- Get a professional appraisal – Know the true value of the home
- Check mortgage details – Understand who is legally responsible
- Review financial records – Look at the source of funds used for down payment and mortgage
- Consult a divorce attorney – Protect your rights, especially if separate property is involved
Final Thoughts
Keeping the house in divorce isn’t always straightforward under Texas law. Property division can involve separate, community, or mixed ownership, and the distinction matters. Whether you’re trying to stay in the home or claim your fair share, understanding how Texas classifies property is critical. Backing your position with clear financial records—like purchase documents, mortgage payments, or inheritance details—can strengthen your claim. More importantly, think beyond ownership. Consider the long-term financial impact of keeping the house in divorce, including mortgage responsibilities, equity, and future resale value. A well-informed approach can help you avoid costly disputes and protect what matters most.
Call to Action
Thinking about divorce and unsure what happens to the house? Speak with a Texas family law attorney before you make any big moves. The right legal advice can help you protect what’s yours.
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Other Articles you may be interested in:
- Wondering what to do with your house in a divorce? Why not wait to make a decision?
- Dividing a House Bought Before Marriage During Divorce in Texas
- Why Tracing Matters for a House Bought Before Marriage in a Texas Divorce
- Community property in a divorce vs community property in probate
- Community Property Survivorship agreement vs a Will (Estate of Lovell)
- Key facts about community property laws
- Who gets what? Understanding Texas community property laws
- Distinguishing between Community and Separate Property in Texas divorces
- Community property issues in Texas divorces: Wasting of assets by spouses
- Community Property in Texas: What you need to know before you get divorced
- Community Property issues in Texas family law cases
- How does a judge divide up community property in a Texas divorce?
- What happens if you and your spouse mix community and separate property?
- How is income from separate property treated in a Texas divorce?
- What is the dual classification of property as partly marital and partly separate?
