Protect Your Home in a Texas Divorce: Bryan Fagan's Tips

A house is often the most valuable asset a couple shares. It’s also the one that sparks the most tension during a divorce. In Texas, dividing property isn’t always straightforward. The law assumes everything acquired during the marriage belongs to both spouses, but that doesn’t mean you’ll automatically lose your home. Protecting home in divorce takes strategy, timing, and a clear understanding of how property laws work in the state. Without the right steps, you could walk away with less than what you deserve—or nothing at all.

Know the Difference Between Separate and Community Property

Texas follows community property law. This means that most assets acquired during the marriage belong equally to both spouses. However, not all property falls under this rule.

What Counts as Separate Property?

Separate property refers to:

Property owned before the marriage
Gifts given to only one spouse
Inheritances received by one spouse
Settlements for personal injuries (excluding lost wages)

If you bought the home before getting married, received it as a gift, or inherited it, you may have a stronger claim to it.

What Makes a Home Community Property?

If you and your spouse purchased the home during the marriage, Texas law assumes it’s community property. Even if the title is in your name alone, that doesn’t automatically make it separate. Courts will look at how you paid for the home, used it, and treated it during the marriage.

Avoid Mixing Separate Property With Community Assets

Many people lose their claim to separate property by mixing it with community property. This is known as “commingling.” Once commingled, it becomes harder to prove ownership.

For example, if you inherited a home but used community funds for renovations or mortgage payments, your spouse may have a claim. You must keep clear records and avoid using joint accounts or marital funds for separate property maintenance.

Keep Strong Documentation

If you want to keep your home or prove it belongs to you, paperwork is key.

What to Keep on File:

Closing documents or title deeds showing the purchase date
Records of inheritance or gift documentation
Mortgage payment records that show who paid
Home improvement receipts that show funding sources

You’ll need this evidence if you claim the home as separate property or want to show your investment in it.

Consider a Postnuptial Agreement

While not many couples talk about postnuptial agreements, they can be helpful if you want to clarify home ownership during the marriage. A postnup can lay out who owns what and how to divide property if the marriage ends.

To be valid in Texas, both spouses must sign the agreement voluntarily and with full disclosure. Courts may throw it out if they find any sign of coercion or unfairness.

Don’t Move Out Without a Plan

Moving out of the house too early can affect your chances of keeping it. While Texas courts don’t punish spouses for moving, leaving without reason may give your spouse leverage, especially if children are involved and remain in the home.

If you want to keep the house, consider staying or at least communicating why you’re leaving. Set expectations about continued financial contributions, maintenance, and custody arrangements.

Request a Temporary Order

You can ask the court for a temporary order once divorce proceedings begin. This order can:

Grant one spouse exclusive use of the home
Prevent either party from selling or refinancing the home
Decide who will pay the mortgage and utilities

This can help protect your interest while the divorce plays out. It also prevents one spouse from taking actions that could damage your financial position.

Sometimes, selling the home is the only realistic option. In that case, you must fight for a fair share.

Hire a professional appraiser to determine the home’s value. Then compare that to what you or your spouse have already contributed. Courts look at the fair market value and may also consider improvements, payments made, and debts tied to the property.

If one spouse wants to keep the house, the other may get a larger share of different assets in return.

Use a Reimbursement Claim if Needed

If you used your separate funds to pay for community property, or vice versa, you may have the right to file a reimbursement claim.

For example, if you used your inheritance to cover mortgage payments, or you made upgrades using your premarital funds, the court may reimburse you. You’ll need solid proof, including bank records, contractor receipts, and written agreements.

Consider the Financial Impact of Keeping the Home

Before fighting to keep the house, look at the full picture. A house comes with responsibilities—mortgage, insurance, taxes, repairs. If your income drops after the divorce, you may find yourself financially stretched.

Ask yourself:

Can I afford to buy out my spouse’s share?
Can I refinance the mortgage under my name alone?
Will I need to sell the home later?

Sometimes, letting go of the home makes more financial sense, even if it’s hard emotionally.

Work With a Family Law Attorney

Dividing property in Texas divorce cases can get messy. A good family law attorney helps you protect your interests, negotiate fairly, and avoid mistakes that could cost you the home.

Choose someone with experience in Texas family law and a record of handling high-stakes property disputes. They can help you file temporary orders, track down financial records, and argue your case during mediation or trial.

Think About Long-Term Goals

The house might feel like a priority now, but think about what matters most after the divorce. Do you want to keep your kids in the same school? Do you have the budget for upkeep? Are you hoping for a clean slate?

Here are some long-term questions to help guide your decision:

Will keeping the home give you stability?

If you have children and want to maintain a sense of normalcy, keeping the house might help. Texas courts often favour arrangements that reduce disruption to children’s lives.

Is the home a financial asset or a burden?

Equity in a house can grow your wealth, but only if you can manage the payments. If the property comes with too many debts or needs expensive repairs, it may be smarter to walk away.

Are you willing to give up other assets?

To keep the house, you might need to give up retirement accounts, vehicles, or cash. Make sure the trade-off makes sense based on your long-term goals.

What Happens if the House Has a Mortgage?

If the house still has a loan under both names, divorce won’t change that. Even if the court awards the home to one spouse, the lender can still come after both parties if payments stop.

To avoid this:

Refinance the loan under the name of the spouse keeping the house
Sell the home and split the proceeds
Use other assets to pay off the mortgage

Ignoring the loan can wreck both credit scores, cause legal headaches, and make it harder to move on.

Final Thoughts

Texas divorces follow strict community property rules, and houses often sit in the middle of heated disputes. If you want to protect your home, act early, keep your records tight, and understand what counts as separate or community property. Don’t make decisions based only on emotions. Think about what you can afford, what you need in the long term, and how to protect your future stability.

A well-prepared spouse has a better chance of walking away with the home—or at least a fair share of its value.

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FAQs: Protecting Your Home in a Texas Divorce

Is a house considered community property in a Texas divorce?

Yes, if the home was purchased during the marriage, it is presumed to be community property, even if the title is in only one spouse’s name.

What counts as separate property when it comes to a house?

Property owned before marriage, inheritances, gifts, or certain personal injury settlements may be considered separate property.

Can separate property become community property?

Yes. Mixing separate funds with marital funds, such as paying the mortgage with joint accounts, can result in “commingling” and weaken a separate property claim.

How can I prove the home is my separate property?

Keep strong documentation such as deeds, closing documents, inheritance records, mortgage statements, and receipts showing separate funding.

What happens if I move out of the home during divorce?

Moving out without a clear plan can weaken your position, especially if children stay in the home. Courts may consider this when determining temporary use.

Can the court issue a temporary order regarding the house?

Yes. Temporary orders may grant one spouse exclusive use, prevent refinancing or selling, and decide who pays the mortgage and utilities during the case.

What if neither spouse can afford to keep the home?

The court may order the house sold and the proceeds divided fairly. A professional appraisal usually determines the home’s value.

What is a reimbursement claim in divorce property division?

If you used separate funds to pay for community property (or vice versa), you can ask the court for reimbursement with proper proof.

Should I fight to keep the house after divorce?

Consider whether you can afford the mortgage, taxes, and upkeep long term. Sometimes selling is more financially practical.

What happens if the house has a mortgage in both names?

Divorce does not remove your obligation to the lender. Options include refinancing, selling, or using other assets to pay off the loan.

How to protect your home in a Texas divorce