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Own a home and getting a divorce? Here is what you need to know

If you are anything like most of your neighbors, the home that you are currently living in is your largest financial asset. When you made the decision to purchase your own you took on the most significant ownership interest in any one thing that you likely ever will in your entire life. Whether you live in that house until you are eighty years old, or sell it two years later, that home represents a financial commitment.

Since your home represents so much of your wealth, it is crucial that you understand how it could be treated in your divorce case. Questions like how your home will be valued and how it could be divided are ones that you need answers to early on in the divorce process.

On top of all these practical concerns, you have the emotional components to a family home. Memories of your child’s first steps or a graduation party for your son are mixing with the anger and sometimes resentment associated with a difficult divorce. Separating the practical from the emotional is one of the toughest aspects of figuring out what to do with the family home in a divorce.

The battle that often times wages between spouses in divorce in regard to what will happen to the home when the divorce is completed demands that you know as much as possible about this process before your divorce even begins. Today's blog post from the Law Office of Bryan Fagan will seek to provide you with the knowledge that you need to be well equipped to handle your divorce.

Learn as much as possible, as early as possible

The use of the family home during your divorce, how it will be valued and who is likely to be awarded the home (if you choose to keep it) all need to be discussed with your attorney early on in your divorce. Make no mistake, while you certainly will have emotional ties to the home, the decision of whether to sell or attempt to retain the home in a divorce needs to be primarily a business decision based on your personal financial interests.

One of the benefits to having an attorney represent you in your divorce is that the lawyer can help you to set aside personal feelings about the home and make a decision that is based on your own personal, financial goals and the economic realities facing your family.

Many prior clients of ours have initially expressed a strong desire to keep the family home. When I ask the client if he or she can afford to make mortgage payments alone without the salary of their spouse, often times the answer is no. Or, you may have concerns about how moving would affect your child’s performance in school and their ability to make friends and adapt to new surroundings. While it is fair to have concerns that exist outside of the economic realm, it is important that you and your attorney make sure that you can realistically afford to take on whatever responsibilities you encounter in regard to selling or retaining the family home.

I always find that it is helpful for clients to speak to realtors early on in the divorce to get a sense of what the market is like in their area. For instance, if houses are taking six months or longer to sell, are not increasing in value proportionate to our area in general or if your home has specific limitations that need to be addressed, it is wise to look at these factors very early in the divorce. It may be that you and your spouse need to work together to solve these issues in order to make the house more marketable for sale. Or, if one of you will be keeping the house and refinancing it to remove the other’s name from the mortgage, that process should be started early to see if the applicant qualifies for a refinance.

Who is going to move out of the family home during the divorce?

Most courts will award either you or your spouse exclusive use of the family home for the duration of the divorce. Most judges in Texas will hold the opinion that it is not smart for you and your spouse to continue to reside in the family home together, absent an agreement between you and your spouse to do so. Anyone who has seen the “I Love Lucy” episode where a line is drawn down the center of the room giving each spouse a “Mr.” and “Mrs.” Side can picture what your house will be like if you continue to live together. Add in the component of your small children living with you and this can be a confusing and awkward decision if you choose to make it.

In the event that you and your spouse cannot agree on how to divide up the family home during the divorce, you will be forced to attend a temporary orders hearing. At that hearing, either your or your spouse will be granted the exclusive use of your home and the other will have to move out in a certain period of time. That means if you are not awarded the use of the house, you will need to find a new place to live and move your belongings out before that deadline.

How will your judge make a decision about who stays and who goes?

There are no hard and fast rules that a judge must follow when deciding who gets to stay in the house and who has to leave. The Texas Family Code is silent on this subject. However, there are factors that a judge may look to in your case to make a determination on living arrangements during the divorce.

Most importantly, a judge will look to which parent is going to have primary custody of your child. The judge in your case will very likely want your kids to be able to remain in the family home during the first few months of the divorce. As such, it would make sense to allow the parent who wins primary custody to remain in the house with the kids.

In some circumstances, you and your spouse will have made it an easy decision for the judge- as far as which of you gets to stay in the home. This can happen when either you or your spouse move out of the house early on in the divorce. There is nothing wrong with doing this, other than the fact that once you move out it is difficult to get back in. I have rarely if ever, seen a judge award exclusive use of the home during a divorce to the spouse who took it upon him or herself to leave soon after the divorce had been filed. In the same sense, I have rarely seen a judge award primary custody of the child to this parent, either.

As we touched on in earlier sections of today's blog post, it is important for the judge to take into consideration whether your or your spouse (or both) can afford to make mortgage payments without the assistance of the other's income. In some circumstances, a court can order you to retain the house (if that is what you want) and then order the other spouse to pay spousal maintenance to make up the income loss that would otherwise not allow you to make the mortgage payment.

Other considerations that a judge would likely think about before awarding the house to you or your spouse for the duration of the divorce would relate to other relatives that reside in the house and if one of you works out of the home. For example, if your mother is living in the house right now while you find her a retirement community to live in and you also work out the house, that may tip the scales in your favor as far as remaining in the house for the duration of the divorce.

When was the house actually purchased?

I have written the first two-thirds of today's blog post under the assumption that you and your spouse bought your family home together after you were married. This is not always the case, however. In some instances, you or your spouse may have purchased the home before you ever got married. In situations like this, what will the impact be on your divorce? One would think that the home would always remain with the spouse who purchased it, but that is not always the case. I am aware of some courts who have awarded exclusive use of the house during the divorce to the spouse who has no property interest in it.

Abandoning the family residence? Is there such a thing?

Some folks going through a divorce (from my experience, it is usually the husband) will ask whether or not it is a smart idea to leave the home before there is a court order in place that directs him to do so. Their first instinct is to provide their wife with some space and to otherwise avoid a combustible situation. However, in the back of their mind is often times a concern that doing so would constitute an abandonment of the home and their spouse.

My response to questions like this is that if you are considering leaving the family home before you go to court or mediation, and you have children, it is best to remain in the home if you anticipate fighting for primary custody. Leaving the home, absent a violent spouse forcing your hand, is a bad idea when you have kids. Judges will almost always view this negatively and can have a huge impact on whether you are able to make a convincing argument for primary custody.

With that said, violence and acrimony in the house are not healthy for you, your spouse or your kids. If your relationship with your spouse has deteriorated to the point where you are no longer able to get along with one another then you may have to move out in order to protect your kids from having to see something that could harm them emotionally or physically. In the event that your spouse has been violent with you in the past, you may need to ask a court to award you a protective order that bars your spouse form your house or your place of business.

Finally, just because you move out of the house for any of the reasons that we have listed that does not mean that you cannot be awarded the house in the final orders of your case. It is true that what goes into the temporary orders has a way of showing up again in the final orders, but that is not always the case. You should speak to your attorney about your specific circumstances in order to be provided with information that can help you make a decision about whether you should stay or go.

Questions about your home and your divorce? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan thank you for spending some time with us today, reading this blog post. We know that you have questions about your divorce that center around your family home and hope that the information we provided you with has been helpful. We will be back tomorrow to continue to write more about this subject.

In the meantime, if you have any questions about the material that we wrote about today please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. The consultations are a great opportunity to ask questions and receive feedback about your particular circumstances. We take pride in representing people in our community just like you and look forward to helping you and your family.

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  13. Know How Property and Debts are Divided, When Preparing for Your Texas Divorce
  14. How Much Will My Texas Divorce Cost?

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.

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, TexasCypressSpringKleinHumble, KingwoodTomballThe WoodlandsHouston, the FM 1960 area, or surrounding areas, including Harris CountyMontgomery CountyLiberty County, Chambers CountyGalveston CountyBrazoria CountyFort Bend County and Waller County.

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