The decision to sell your family home can be an emotionally draining, time-consuming, and hectic process to put yourself and your family through. The decision to get a divorce can be an emotionally draining, time-consuming, and hectic process to put yourself and your family through. The decision to sell your family home and get a divorce at the same time can be…well, you get the idea. Doubling down on problematic, sometimes long, sometimes expensive, and constantly emotionally draining processes can be the right thing to do, but it is never easy.
The majority of our clients going through their own divorce home with their spouse. Assuming that the house was purchased during your marriage to that spouse, it will be a part of the community estate during your divorce. Thus, it is eligible to be divided between you and your spouse in some form or fashion. Frequently, spouses conclude that it is best for all parties involved to sell the family home due to going through with a divorce.
Your family home represents not only the most significant investment and asset that you and your spouse own but also is the site of Christmas celebrations, birthday parties, kids’ sleepovers, and many good memories. These memories make it difficult for many people to part with the family home despite being the most logical decision to move towards if you and your spouse cannot agree to sell the home in a situation where it is “too much house” for one you (either in terms of size or mortgage payment) a judge may have to make that decision for you and order that the house goes on the market.
Often, the best reason to sell the family home is just wanting a fresh start. Along with those happy sorts of memories that I mentioned a moment ago are less pleasant memories. Even if you can afford the mortgage and even if the home is something that you value, it may still be a good idea to move on from it if you cannot separate the house from your past marriage.
Whatever circumstances you find yourself in, I think it is worthwhile for you to walk through an analysis of the issues surrounding selling your home during a divorce in Texas. The problem with this topic is that you can get a lot of different opinions on the subject, but very few of them consider all of the relevant elements of both divorce and selling a house. Fortunately, the attorneys with the Law Office of Bryan Fagan are equipped to present a comprehensive discussion on this subject with you today.
Are you stuck in neutral, or worse- reverse, during your divorce?
Since you started contemplating divorce or were served with divorce papers from your spouse, have you struggled with how to move forward? If so, you would not be alone in feeling this way. I think many people in your position feel the pressures of divorce and then start to get overwhelmed with how to proceed. Add in stresses associated with your kids, bills, work, and what to do with a house, and you have a pretty tough situation to walk into.
Paralysis by the analysis is a way of saying that you feel like you can’t move one way or the other because you spend all your time and effort trying to think about your options. If you can’t make up your mind on which direction to go with your case and your life, then you won’t be able to make a definitive move one way or the other. This is true during a divorce case or during any additional time in your life.
What you will find in a divorce is that sometimes your spouse or the judge will force your hand and propel you in a particular direction. The need to start fresh, pay off debt, or find a new place that you can afford may all be relevant considerations for you to make during a divorce. If selling the house is the main issue you are concerned with, then I suggest that you keep in mind the following tips and tricks for selling a. house during your Texas divorce.
Don’t underestimate the difficulties associated with divorce or selling your family house.
As we have already mentioned, very few people make it through a divorce and the selling of a home without looking back and wondering what they could have done differently to have made things a little easier for themselves. It is common to experience a stress overload during the divorce and even more common to experience stress associated with selling a house.
The trouble is that you own that house along with your spouse. So, you have to coordinate the selling of your most valuable asset with a person you are not on the best terms; if this sounds like an explosive situation, you would not be incorrect. If the circumstances of your life line up where everyone should sell the house during a divorce, then you will need to be able to work together with your soon-to-be ex-spouse on how to do this.
Sometimes just deciding with your spouse can be enough to cause you to feel less stressed out. If you have children, then you are going to be concerned with their well-being above everything else. Knowing whether or not you will be selling your house can make it easier to talk to your kids about their future and where they will be living after the divorce. Remember that your kids will be going through a transition just like you will after the divorce finishes up.
Financial elements will impact decision-making associated with deciding whether to sell your house.
I think the most prominent and logical place to start when determining whether or not you need to sell your house during or after a Texas divorce is whether or not you can afford to pay the mortgage on only your salary. The same question needs to be asked of your spouse, as well. Usually, you and your spouse will apply for financing your house together based on each of your incomes. It would not be uncommon for neither of you to have a salary that would allow you to afford your current mortgage.
Next, I would recommend that you all look at your overall financial picture to see if the house fits into your new reality. For instance, even if you can pay the mortgage based solely on your salary, you need to consider whether or not it will cause you to win in the long term. For instance, if your mortgage payment represents fifty percent of your take-home pay each month, then that leaves you very little wiggle room to save for retirement, your kid’s college, or pay down other debts. That is a recipe for treading water, at best.
At worst, not selling your house to maintain some degree of normalcy may set you back years and years in your emotional and financial growth after your divorce. Consider what would happen if you decide to remain in the house and the water heater and the air conditioner break down in the same week. Where would you get the money to make those repairs if half of your monthly income is going towards paying a mortgage? You would be in a challenging position. Anything that can go wrong often will go wrong when it comes to circumstances surrounding a divorce.
Let’s flip the situation for a moment. Consider this situation if you are a father whose three young children will end up living most of the time with your ex-wife. You very much want those kids to be able to remain in the house where they grew up. Against your better judgment, you decide to allow your kids and your ex-wife to stay in the place. One concern that you had was that your ex-wife is only earning around $30,000 per year. Even with child support assistance, you know that she does not have much wiggle room in her budget.
On top of that, she is the party (at least under the orders of the divorce decree) that is solely responsible for the mortgage. It is ordered that she make all payments on the mortgage in exchange for being able to stay in the house. You were paid your equity stake in the place out of other property in the community estate, so you are all set to go. Wrong. Let’s see how the decision to allow your ex-spouse to remain in the house could be wrong.
Selling the house is stressful, but remaining in the place could be worse.
Suppose that your ex-spouse loses her job and can no longer afford to pay the mortgage. It would be one thing if you were no longer liable on that mortgage, but divorce has no impact on that. Even though your divorce decree specifically states that your spouse is 100% responsible for paying the mortgage, this is true. Unfortunately, the divorce decree has no impact on your legal responsibility under the note. Whatever lender holds your message will be looking to you for payment on it regardless of whether or not your divorce decree states you are off the hook.
Imagine how upsetting it would be to ignore your gut instinct, allow your ex-spouse to remain in the house, you move out, and then your ex-spouse doesn’t pay the mortgage, and the foreclosure timeline begins. That is a situation that many parties like yourself find themselves in after a divorce. What can you do to avoid putting yourself in this position where you hold only liability and derive no benefit from the house any longer?
What I recommend that clients do in this situation is to execute a Special Warranty Deed which transfers your portion of the house to your life. This way, you legally make it so you can no longer enter the home without the permission of your ex-spouse. That may make your spouse feel more at peace.
As far as your liability under the mortgage, there are a couple of options. The first involves your ex-spouse applying to refinance the mortgage. The trouble is, even if your spouse agrees to the divorce decree to go a refinance, there is no guarantee that she will be approved for one. If she either applies and is denied or never bothers to apply, this puts you in a powerless position if she ever stops making those mortgage payments.
Your spouse should sign, file, and deliver to you a Deed of Trust to Secure Assumption to combat this situation. This deed of trust to secure Assumption is your protection against foreclosure due to your spouse’s failure to pay the mortgage in full and on time. It allows you to foreclose upon your ex-spouse and take over the mortgage if she is in default. Again, this may not solve all of your problems, but it does allow you to protect yourself to a certain degree.
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- Selling your home during a divorce in Texas
- Selling Your Home in a Divorce: Tips to Stay Calm and Move On
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- Your home in a Texas Divorce: How to decide whether to sell or stay
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
