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Why can my home be divided during the divorce?

One of the most significant aspects of dividing a community estate during a Texas divorce is in regard to the family home. The fact is, that at a certain point, a divorce becomes a business transaction. It is no longer in your best interest to see your spouse as the person that she loves and someone that you possibly grew a family with. When you were going through a divorce it is better for the process and fairer to everyone involved for you to view him or her as a business partner that you are attempting to dissolve a business with. That means that you can be fair but also keep in mind objective circumstances that can impact the division within your divorce. 

For most of us, your home is the largest financial investment that she will ever make. How it is divided within the context of a divorce is one of the questions that every husband and wife going through a divorce needs to consider early on in their process. What works well for your family may not work as well for the family across the street and vice versa. As many different families that go through divorce as there are there are as many different outcomes that can work just as well for these folks. We need to examine a number of different factors and circumstances before you can have a better idea of when How should be sold and when a spouse should consider staying in the house even after a divorce is complete. 

Why might your house be divided in a Texas divorce 

The idea that your house could ever be split as an asset between you and your ex-spouse after the divorce is one that never happens. Sharing custody of a house is not like sharing custody of children. It is just not practical for each of you to get use out of the home after your divorce for obvious reasons. As a result, a house will typically be divided between spouses in the divorce as the result of a sale or one of you will end up remaining in the home after the case is over with. Let's discuss why your house maybe divided during the divorce. 

For starters, most homes in America are not owned outright by the person living in it. This is especially true for the average Texas family who is going through a divorce. Most of you reading this blog post who are considering a divorce and are living in a home do so with a mortgage on their home. This means that while you may have some equity in the home it is unlikely that you own the home outright without a lien from a bank or financing company on the home as well. 

Given that there is likely a mortgage on your home and assuming that the mortgage was secured based off of the income of you and your spouse this will present you with a problem after your divorce is complete. The problem is that, with only one person's income to pay the mortgage and their other bills, but it will be stretched to their Max if one of you wanted to remain in that house. It is possible that you and your spouse bought a house that is well within your budget and only a small percentage of your take home pay each month. Folks in this category would likely be paying somewhere under 20% of their net monthly income towards a mortgage and insurance. 

For my experience, most people who own homes do not purchase a home with a mortgage that is this lower percentage of their monthly and computer most of the time, your home mortgage will represent a higher percentage of your monthly budget. This means one of two things. It could mean that the house is already too expensive for you and your spouse to afford and you probably should have tried to sell the house and move into something less expensive earlier. The second thing it could mean is that even if you have not sold the house already or attempted to do so it will be a wise decision for you to do so now given that your income is being cut in half most likely.

The sale of a home as the result of a divorce is what I'm talking about when I reference dividing a house in a divorce. It does not mean that your house will physically be divided. It does not mean that you and your spouse will be splitting time in the house after the divorce. What it does mean is that you and your spouse would either agree to sell the home as a function of your divorce or would be ordered to do so by a judge. Either way, it is likely that if neither you or your spouse can afford to pay for the mortgage after divorce that you will be selling the house sometime after the divorce concludes.

What goes into selling a house after a divorce 

any of you reading this blog post have ever sold at home no the sort of trouble it can cause. Buying a house can be a fun experience because you are able to go out shopping, look for the perfect house and then negotiate a price with the seller. There is less pressure on you because you have the options before you of continuing on at the sale or simply looking to a new house. After all, there is a house on every corner and there is no perfect house in all actuality. 

On the other hand, a seller of a home goes through much more stressful experience and the buyer of a home. Whereas, a home buyer has they are pick up houses most likely to select from, you have to focus on selling one home in one home only. It does not help the matter when you have 10s or even hundreds of thousands of dollars tide up in a home that you cannot access unless you were to sell the home successfully. Selecting a realtor, lining up buyers, showing the house off, making necessary improvements and many other factors go into selling a home. 

That's not to mention anything about how much more difficult it is to coordinate all of these activities with an ex-spouse. This is why, if you do agree to sell your marital home as a result of a divorce, that you should agree to do so with conditions specifically laid out in your final decree of divorce. If you move forward with the sale of a home after a divorce and do not layout specific conditions in your final decree of divorce you are doing yourself a serious disservice. The reason for this is that to be unclear, you are being unkind to yourself and to your ex-spouse. 

Rather, you should provide specific expectations and requirements when it comes to selling your home. For example, if you are able to do so you should list a specific realtor that you would like to work with. You should list how to structure the sale of the home, how you can agree on a sale price and you should obviously agree how the proceeds from the sale of the home should be divided. Costs associated with repairs, appraisals or inspections should also be specifically mentioned within the final decree of divorce. Do not assume that you and your spouse will be able to agree to these costs when you are ex-spouses. 

Finally, you should make it known to the realtor, title company in any other professional who is working with you in the sale of your home to ensure that all parties are aware that you and your spouse are no longer married. This may impact how the final paperwork is drawn up and how the final checks need to be written. You do not want to run into a situation where one check is written to you or your ex-spouse after the home closes. This can create needless difficulty an unexpected problems for everyone involved. Simply tell your realtor and make sure it is confirmed with the title company that you are divorced and will be meeting arrangements based on this relational status between you and your former spouse. 

When could your family home not be sold in a Texas divorce? 

In some cases, your family home may not have to be sold after all. There are cases where it is in the best interest of that family for one of the spouses to remain in the house in take over responsibility for paying the mortgage. Let me begin By saying that it is not a good idea to attempt to remain in a family home due to nostalgia, desire for stability for your children Or out of a desire to avoid change. It is OK to feel these ways about a house and even have them be in combination with other factors as reasons why to stay in the house after a divorce. However, to base your decision to remain in the house one of these factors alone is a mistake. 

To me, the number one reason why one spouse should remain in the house after a divorce is if that spouse can afford the mortgage, insurance and other costs associated with home ownership. Remember that home ownership does not just mean making a mortgage payment each month period it is much cheaper for you to live in an apartment and to tell your landlord when your AC stops working versus living in a home that you own and having to pay for a new air conditioning system when the old one breaks. These are the sort of costs that do not always immediately jump to mind when it comes to homeownership. 

As I mentioned earlier in today's blog post, if you or your spouse are able to afford to remain in the family home after a divorce then that is step one to not having the home divided as a result as a result of your marital split. The other factors that I believe are important is whether or not you are able to refinance the home, whether a new beginning elsewhere won't be good for you and your family and a consideration of weather cash is more important to you in your post-divorce life or the marital home is.

This is a moot point if you have no mortgage on the home, but if there is a mortgage on your home you will need to refinance the house in order to remove your spouse’s name from the mortgage. It is very unlikely that your spouse will agree to allow you to remain in the house, and to keep their name on the mortgage. There is no upside to your spouse in making this kind of concession to you and you should not expect him or her to make it. Therefore, you need to be sure that you can refinance that mortgage and to get a new loan with only your name on it. If you are in a position where your spouse is asking you to move out of the house and to allow him to remain in the house then you need to be very, very sure that he will qualify for a new mortgage. If he is not creditworthy and you should not agree to this sort of setup. 

Otherwise, you need to consider whether or not you need a home right now or whether you need cash. the sale of a home can rock your world in many ways, but it can also infuse your life with much needed cash after what could be it a long divorce. You can always buy another house at some point in the future when you are more financially stable period however, even if you can afford the mortgage right now he may look at selling the home as a time for you to gather yourself after a divorce and reassess were where you want to go and how you want to get there. 

Questions about the material in today's blog post? Contact the Law Office of Bryan Fagan 

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week here in our office, over the phone in via video. Thank you for your interest in our blog and we hope that you will return tomorrow as we continue to share unique family law content. 


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