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Dividing up the marital home in a Texas Divorce

Dividing up the marital home in a Texas Divorce

There is a fatigue that is associated with divorces that is absolutely real. On the emotional side of things, your life and your family’s life is being turned upside down for as long as the divorce goes. Even once the divorce is complete your life will never be the same again, for better or worse. From a physical perspective you are probably not sleeping as well and are busier than ever with your child’s activities. Throw on some court dates, mediation dates and meeting with your attorney and a divorce puts you through the ringer early and often.

With that said, if you and your spouse are selling your home as a part of the divorce then that stress level is ratcheted up a notch or two. Most likely your largest investment the place you and your family have laid your heads at night for many years your house has financial and emotional components that are to be taken seriously.

While your attorney is an expert in the law, it is critical that they also have knowledge of how to structure your divorce in terms of selling the home and making sure that your rights are protected during the process. The attorneys with the Law Office of Bryan Fagan, PLLC would like to share some information on this subject that often confounds and disrupts a divorce case.

What can you do as a homeowner to make the process of selling your home easier?

When it comes to selling your house it is best to take off the “emotional” hat you had been wearing for dealing with your family and other personal matters and to put on the “business” hat that you might ordinarily reserve for the workplace. Essentially by treating the sale of the family home as a business transaction rather than an emotional one, you can focus on what you and your spouse need to accomplish.

How do you get the house on the market and sold in short order? By making realistic decisions, understanding your options and then seeking the help of a realtor who has handled putting a house on the market for people going through a divorce. Let’s break down each of these items one by one.

How to make realistic decisions when selling a home

In many divorces, one spouse is awarded the home and has the responsibility to refinance the loan into their name only. The profit or loss from the refinance is then split between the parties. The spouse who leaves the home is “bought out” of their share of the equity and has their name removed from the deed to the home.

After that point, in some instances the home is sold and in others the home is held onto for a longer period of time. Ultimately, the mortgage company does not care whose name appears on the mortgage. If you are the spouse who is no longer going to be living in the home it is understandable that you will no longer want to be responsible for the loan.

However, in situations where there is no mortgage on the home and one spouse plans to keep the home as part of the divorce settlement there is a straightforward procedure to employ. A Special Warranty Deed will be drafted that is recorded wherein the name of the spouse remaining in the home is listed as the owner. If you are the spouse who is no longer going to be living in the home then your name is removed on this deed.

If your home has a mortgage on it then the situation becomes a little more complicated. The biggest question to answer in this situation is whether you or your spouse has the financial wherewithal to qualify for a mortgage in their individual name. Obviously you need to consider what your life is going to be like after the divorce and if you believe you can take on the responsibility of the mortgage. The other consideration to make is that a lending company/bank/mortgage company will evaluate you from the standpoint of whether or not you are credit worthy.

Who gets primary conservatorship of the kids may have a leg up

If you are awarded primary conservatorship of the children then you would also have an advantage, hypothetically in being awarded the home if you want it. The stability of the family home for the children and the opportunity to engage in the same social circles and school environment is a huge advantage for you to keep the home. However, if you are a stay at home mom, while you may end up being named the primary conservator it is unlikely that you would qualify to refinance the mortgage into your name as you have not had an income for years.

From my experiences, showing a lender that you will earn a certain amount of money each month in child support will not suffice either in most situations. Obviously you will need to be guided on the law and how it applies to you and your ability to refinance a mortgage and if it is even in your best interest to do so. It is understandable that if you are awarded primary conservatorship of the children that you will want to give them the comfort of being able to remain in the home. However, if this is something that is beyond your capabilities from a financial perspective it is best to consider whether or not selling your home and taking a chunk of money in equity with you is a better decision.

Part Two of the Law Office of Bryan Fagan, PLLC’s advice on selling a home coming up tomorrow

Anyone familiar with my blog posts on this website can attest to the fact that on occasion I let a subject get the best of me where one article will not suffice. This one dealing with selling a home in connection with a divorce is no difference. Please be sure to take a look at our second post in this series set to be publish tomorrow.

If you have any questions on this subject please feel free to contact the Law Office of Bryan Fagan, PLLC. Our licensed family law attorneys are available six days a week to meet with you in person to answer your questions and to tell you more about our office and the services we provide.