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How to plan for what will happen with your marital residence in a Texas divorce

When it comes to property and assets in a divorce, you are not likely to have a single piece of property that is more valuable than your family home. Determining the value of your home and how to divide it in the divorce is perhaps the most important aspect of your case from a property perspective. The other aspect of dealing with the family home that makes it so difficult to handle is that there are emotions tied up in the possibility of selling that home. 

Who will stay in your home and who has to exit? Which spouse gets to keep what portion of the equity in the home if it is sold? These are among the most important and pertinent questions in the discussion regarding the home. As such, I want to begin by showing you what questions you need to be asking early on in your divorce so that you are prepared to make good decisions for yourself and your children in negotiations. 

How is the marital residence treated in a Texas divorce?

There are various stages to the concerns that you have in relation to your house. The first stage deals with immediate concerns like who gets the use of the home during the divorce. After all- if you can’t get use of the house during your case then you will need to find another place to live. That means saving up money for moving into a rental house or apartment, buying furniture, furnishing a room for your child, etc. So, you should ask and find out early in your case what is likely to happen with the house during your case.

The key to handling any situation regarding your home is to be aware that you are going to be impacted by the emotions that surround uncertainty and your house. We attach a great deal of stability to our home and not knowing exactly what is going to happen in relation to it can be a bit disconcerting. While it would be unrealistic to expect a person to ignore all of the emotion surrounding the house and just think about the asset in terms of numbers, I would recommend that you learn on your attorney to help you sort through all of the elements associated with selling your house. 

A simple truth regarding your home is that the finances associated with whether or not to sell the family home is based in part on whether or not you can afford to make the payments. If you have the opportunity to remain in the house after the divorce but cannot afford to make the payment you have no choice but to plan on selling the house. This may not make you feel warm and fuzzy but it is the right decision. You may find that moving down in house to something a bit smaller and more manageable for you as a single person will work better than remaining in the family house. 

Your children are obviously going to be impacted by having to move. They have memories wrapped up in the family house. It may be the only house they have ever lived in. However, you should not be swayed by their emotions associated with the house. You need to do what is best for you financially. Your kids will adapt to their new surroundings, especially if you take the time to explain to the kids why you are moving and what factors have led to the decision to move from the family house. 

The last point I want to make in this introductory section of today’s blog post is that you should start to consider these issues right now. Do not wait until your divorce is half way over with. Do not start when you walk into mediation for final orders. Depending on what decision is right for your family you will have needed to get the plan into motion at the beginning of your case, possibly. Waiting until the end of your case to come up with a plan is a risky bet to take. If your spouse doesn’t agree with you, the issue of your house may force you into a trial that could have been avoided with more time to negotiate. 

Who’s moving out of the family house at the beginning of the divorce?

This is an issue that you should seriously consider before you make the decision to move. For any father or husband reading this blog post, I can tell you that it is most often that you will be the one to move out of the house. I think it is more or less assumed that the man will be the one to leave the house- especially if you have kids living there. This would seem to defuse the situation and keep everyone at a safe distance. No use being at home if all you and your wife do is argue, right? Well, let’s consider that question right now before we go any further. 

The divorce court can award the house to you or your spouse during the divorce. That means that one of you could have the exclusive (only) right to stay in the house and the other would need to find a place to live from that point forward. Most judges in Texas will assume that you and your spouse should not remain in the home together during the case. Of course, if you and your spouse agree that you all should remain in the house together then that would be what happens. A judge cannot substitute their opinion for yours. You have all the power to keep this decision from even reaching the judge’s desk. All you have to do is settle with your spouse. 

In a hearing for temporary order in your divorce, you or your spouse will be awarded the temporary and exclusive use of the home. Here is what a family court judge will be considering when making a decision on which spouse should stay in the home and which one needs to find a new place to live.

First, the judge will determine which parent is going to have temporary primary custody of your kids. That parent has the leg up when it comes to being able to remain in the marital home. Judges will typically want your kids to be able to remain in the family house during the first few months of a divorce. It would make sense, then, that whichever parent gets to stay in the house would also be the parent who was awarded temporary, primary custody of your kids. This is not always the case but it is by far the most usually outcome when children are involved. 

Next, the judge will look and see if either you or your spouse has already moved out of the home. This would take the decision out of his hands for the most part. Many spouses decide, ass we saw in my scenario above, that it is in everyone’s best interests for him or her just to leave the family home and to seek shelter elsewhere. This could de-escalate the situation at home and provide a better, safer environment for the kids. 

Unfortunately, what ends up happening is that many spouses who leave the family home think that they can just get right back into the house during the divorce. After all- wouldn’t you be doing a good thing for your kids and family by leaving the house when the circumstances at home are volatile? You may be surprised to learn that many judges would disagree. Judges see a parent or spouse who leaves as not necessarily doing so out of the best interests for their spouse or children, but rather out of a self-interest. If you end up leaving the home before your temporary orders hearing you will almost never be awarded temporary use of the home during your divorce. 

Another factor that is important to consider is whether or not the home is community or separate property. However, do not assume that because the house was purchased by you prior to your marriage (making it your separate property) that a judge would not award your spouse temporary exclusive use of the home during the divorce. Courts across Texas have made rulings like this- most commonly when children are involved. 

On top of all the factors that we have already discussed, there needs to be consideration paid to which spouse can afford the payment on the home based on your incomes and on the mortgage. For instance, if you and your spouse both work and have no children it is possible that one of you does not earn enough income to pay that mortgage on your home. In that case, the spouse with the higher income may have the leg up to stay in the house for no other reason than he can make the payment.

On the other hand, what if you and your spouse have two kids together and the issue has come before the judge to decide which of you will be able to stay in the house during the divorce. If you earn a high income and your spouse is a stay at home parent then the initial factors would seem to favor you, as far as remaining in the home is concerned. However, if your spouse has been awarded the right to have primary custody of the kids then that leg up shifts over to her. You can be ordered to pay temporary spousal support in order to allow your spouse and the kids to stay in the house. She may not be able to afford to remain in the house after the divorce but for now your spousal support would help to keep the family afloat while remaining in the home. 

Other factors that are relevant to a judge when deciding who will remain in the house

There are a handful of other factors that I wanted to walk you through as to why you or your spouse may be awarded the right to have exclusive use of the home.

Many people work from home these days, either as a self-employed person or as a work from home employee of a company. If that describes you then you will need to present evidence to the judge as to why you are leaving the house may disrupt your work. If you have tools, a workstation or other items that cannot be easily removed from your home then that may provide you a leg up when it comes to making an argument as to why you need to remain in the family house for the duration of your divorce. 

If you have any ongoing household projects that would require your supervision, then that may be sufficient reason to allow you to stay in the house. For instance, if you are right in the middle of a bathroom renovation and are doing the work yourself then you may need to stay in the house to see that project through to the finish. You never know- it could be that in just a few months you and your spouse will be putting your home on the market for sale.

Finally, the living situation of other relatives in your home will need to be examined. If you just had a number of your extended family move into your home while they are working on finding jobs in Texas, then that is another factor for the judge to consider. That extended family can help you maintain the home and provide childcare for your kids, as well. 

More on the house and divorce in tomorrow’s blog post

If you have any questions about the material 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 consultations six days a week where we can answer your questions and address your needs directly. 


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