During a divorce the most frequently asked question is what is going to happen to the house? To begin it’s important to know the difference between community and separate property. Separate property is any property a party has acquired before the marriage or the home was received as a gift or inherited during the marriage. On the other hand, community property is any property acquired by either party during the marriage. Knowing whether your home is a community or separate property can give you some insight into what should be done with the house during a divorce.
A house that is considered community property can mean that both names are on the lease or mortgage. During a divorce, it is important to know neither party is required to move out of the marital home, even if your spouse tells you to. Without a court order, neither party is forced to leave the marital home, unless there is domestic violence going on which may require the spouses to separate to avoid further violence. Most parties will agree to remain in the marital home in an effort not to double living costs by having one spouse move out.
If both parties are claiming to have access to the marital home during the divorce proceeding, then a temporary orders hearing should be requested. Spouses that cannot agree as to who will have the exclusive use of the home will have the judge make that decision. The judge will grant one party the exclusive rights to the home, forcing the other spouse to leave the marital home. If the home is considered separate property, the party in possession of the home will be granted the exclusive use of their property if they are requesting temporary orders to be put in place.
During the divorce, it is common that a Temporary Restraining Order is requested by one party. The other party must be properly served with the temporary restraining order, and many are confused by what exactly a TRO means. Mistakenly, most will believe this is ordering them to leave the marital home, however, this does not.
Concerns with what will happen to the home post-divorce are important to know as well. If the home is community property, there are generally two main outcomes that happen to a home. First, one party will keep the home and become responsible for all payments relating to the home. The recipient on the home will refinance the mortgage loan in their name. Another option when one party gets to remain in the marital home is to award the home to the party by having the non-recipient party execute a signed special warranty deed.
In a special warranty deed the non-recipient, known as the “grantor”, warrants against problems or encumbrances in the property’s title that happened during the grantor’s ownership of the property. A special warranty deed guarantees the grantee that the grantor owns and can sell the property and that the property incurred no encumbrances during their ownership.
The recipient, known as the “grantee”, in return must execute what is called a deed of trust to secure assumption. This deed is signed by the grantee that confirms the grantor as a beneficiary and outlines the agreements agreed to by both the grantor and the grantee should the grantee default on the mortgage. If the grantee cannot repay the grantor or mortgage lender, the grantor has a right to foreclose on the home. The deed of trust is the grantee’s way to take responsibility and assume all liability for debt against the home. The grantor can take over these payments to protect himself from the effects of the debt, but the grantee must repay the grantor for all expenses.
If both parties want to keep the marital home, or they individually cannot afford the home by themselves, the home can be sold. The proceeds from the sale will be split based on the agreement the parties have reached in their divorce settlement, or the manner ordered by the court. If the sale is decided by the court the profits received from the sale of the home can help the parties start over. Those proceeds will be divided by an “equitable division” more often 50/50 unless a party is to be awarded a disproportionate share of the community property. The party requesting a disproportionate share of the proceeds must show that they are entitled to a larger portion. However, the parties do not need to wait until the end of the divorce to sell the marital home. The parties can agree to have the home sold that will take place in the form of a stipulation. A stipulation is just a written and signed document between the two spouses agreeing to sell the home, and eventually will become a court order that orders the sale of the home based upon the stipulation.
If you have minors that you would like to remain in the marital home until graduation, that can be done by having an agreement not to sell the home until the children fulfill the condition precedent. When selling your home it is important to hire an appraiser to value your home accordingly. Also hiring an experienced real estate agent is important for both parties to properly showcase and market your home for the best outcome of the sale. It is also important to come to agreements regarding the marketing and showcasing of the home with your spouse to have an amicable sale of the marital home.
Understanding what could be done with the marital home during and after a divorce proceeding is important. It can help to know how to prepare if you are requesting exclusive use of the home during the proceeding in a temporary order hearing. You will also be aware of your rights to the marital home if your spouse attempts to exercise control over the home. Lastly, you will know what route is appropriate for your situation in selling your home. The division of community property is hectic, but having an experienced attorney can help take away that stress by fighting for what you are entitled to.
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Law Office of Bryan Fagan, PLLC | Spring Divorce Attorneys
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 one of our Spring, TX Divorce Attorneys right away to protect your rights.
Our divorce attorneys in Spring TX are 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, 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.