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 basic ways that 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 for what it’s worth is likely what a judge would order you and your spouse to do if your case were to make it all the way to a trial.
The reasons why judges like the idea are likely the same reasons why 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 home to the other spouse. If you are the parent who becomes the managing conservator of the children it is likely that you will be given the option to remain in the home if you would like to or if you can 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 lawattorney is not hired to do your divorce. A Special Warranty Deed is signed by the spouse who will be leaving the 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, there is a second part to being awarded the home in your divorce that we have to mention. If you are awarded the house it is likely that you will need to attempt to refinance your mortgage. This is done in order to remove your spouse’s name from the loan so that he or she is no longer liable in the event that payments on the loan are not made in a timely fashion.
What happens in the event that you cannot refinance the mortgage? This is likely if your credit score, income history or other 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 his or her entire interest in the home to you. Talk about your bad 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 he or she is responsible until and unless the loan is paid in full.
Deed of Trust to Secure Assumption
In order 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 then you will be assuming the debt on the mortgage and the responsibility to pay it moving forward. Your spouse, in exchange for his or her signing over their interest in the home to you will be able to foreclose upon the house if you miss payments in the future.
This gives him or her the option to try and buy the house back and then refinance on their own (Removing your name from the house) or to pay off the note themselves. This is essentially a second lien on the house held by your ex spouse.
This may seem complicated 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 that you make are going to benefit you in the long run.
As your house is perhaps the most important investment you will ever make in your life it is important to go about the process of handling it in your divorce the correct way. Your attorney will walk with you through your options and can help you make the decision that is in your and your family’s best interests.
Questions about your home in regard to 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 with it. The advice of an experienced attorney is critical to assisting you through the many steps associated with the sale, re-finance or conveyance or 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 in regard to 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 important 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 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.