Outside of child custody and issues surrounding your children, it could be that what you’re most concerned with in connection to an upcoming divorce is what will happen with your family home. Splitting up other assets and debts can be relatively easy compared to deciding what will actually be done with your home.
Part of the reason for this difficulty is that there are emotions and other considerations that are associated with your home that probably aren’t relevant for a bank account of life insurance policy. Your home is where your children may have taken their first steps or where you and your spouse renewed your wedding vows once upon a time. Many people may tell you that ultimately a house is just four walls and a roof- which is factually correct. However, in the context of a heated and emotionally charged divorce your house can represent much more than that.
Resolving the issue of what to do with your family home upon the conclusion of your divorce can solve a lot of problems and help avoid contentious negotiations and even a trial potentially. The Law Office of Bryan Fagan, PLLC would like to walk with you through some information regarding your family home’s role in a divorce as well as some possible outcomes for it upon your divorce’s conclusion.
A breakdown of Community Property law in Texas
There is presumption that any property that you and your spouse own is community property. The significance of this is that in Texas community property is subject to being divided up between you and your spouse in a just and equitable manner if a judge has any say so in the process. Assuming that your home was purchased during the course of your marriage then it is likely to be a part of your community estate and subject to being divided up in the divorce.
What if your house was purchased prior to your marriage by your spouse but the deed to the home reflects both of your names. Is the house now a part of the community estate because both of your names appear on the deed. The answer is likely to be no if your spouse owned the house prior to your marriage. You may be eligible for a reimbursement claim if your income helped to make payments for the mortgage, so your claim to any financial benefit from the house may not be lost after all. The reason for this is that if your spouse used community property income to make improvements to a house that is a part of his or her separate estate that money should be considered fair game for division since income earned during the course of a marriage is by definition part of the community estate.
The final determination on the family home will be made by you and your spouse…or a judge
Most divorce cases in Texas settle outside of court before a trial is even necessary. This is great for a number of reasons, chief among them being that you and your spouse know a whole lot more about your lives than a judge does or will ever be able to even after a trial. This means that you all are better equipped to arrive at a settlement or outcome that suits you and your family member than a judge is likely to.
However, in the event that you and your spouse are not able to settle your divorce then a judge will have to get involved and play tie breaker. A court will evaluate your case based on our State laws on community property division as well as the individual circumstances of your case.
No matter what your circumstances are though, there are a couple of different outcomes that are likely if your case proceeds all the way to a trial. The first of those outcomes involves either you or your spouse staying in the home after the divorce is over. This means that the spouse who stays will have to be able to pay the mortgage on their own using only their income. Often times this is accomplished by refinancing the mortgage into your or their own name. In other circumstances the spouse who is awarded the home will sign a deed of trust to secure assumption giving the other spouse the right to foreclose upon him or her in the event that mortgage payments do not stay current. The spouse who leaves the home will sign a special warranty deed which takes their name off of the title to the home and vests the property fully in the spouse who was awarded the home in a trial. This way both your rights and your spouse’s rights are protected no matter who stays and who goes.
A second option that can be chosen by a judge is to order the home to be sold and to have the equity (if any) in the house split upon closing. This happens in situations where neither party can afford to make the mortgage payments individually and would not therefore qualify for a refinance. The equity could be split 50/50 or according to whatever terms the judge believes to be most appropriate and equitable based on the totality of the evidence admitted into the record during the trial. Making sure that the terms of the sale are fairly recorded into the Final Decree of Divorce requires experience and precise language that a family law attorney can assist with.
Questions about your family home during and after a divorce? Contact the Law Office of Bryan Fagan, PLLC
To learn more about possible outcomes for your home during a divorce please contact the Law Office of Bryan Fagan, PLLC. Whether your home is big or small or your divorce is settled early or decided later by a judge our licensed family lawattorneys are equipped to serve you and your family. A free of charge consultation is a phone call away 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.