What Happens to the Marital Home During a Divorce?
A 50-50 division presumption applies to all community property.
Theoretically, this question has an easy answer, because Texas is a community property state. But pragmatically, the answer is complicated. Divorcing couples cannot draw a line in the middle of the house, I Love Lucy-style. If the case dictates a 50-50 division, and that’s a big “if,” a unique plan must be in place.
Therefore, a Fort Worth family law attorney must craft practical solutions, rather than one-size-fits-all solutions, in these cases. Since Texas law isn’t straightforward in real estate division matters, both spouses have important legal and financial rights. A lawyer designs a marital home division plan that both upholds these rights and benefits your family, now and in the future.
Community Property Presumption
Some community property states, such as California, have absolute community property rules. Community assets and debts are divided 50-50, almost no matter what. But in the Lone Star State, judges can order an unequal division of community property, based on factors like:
- Length of the Marriage: Longer marriages usually involve substantial assets and debts. The marital home is usually the largest asset, and frequently the largest debt as well, in a divorce proceeding. Therefore, especially if the marriage lasted longer than twenty years, judges often reconsider the 50-50 division principle.
- Future Earning Capacity: Housing costs are astronomically high in this part of the Texas Triangle (D/FW to San Antonio to Houston and back up to D/FW). If a spouse has a limited future earning capacity, s/he may be unable to afford substantially similar housing, giving him/her cause to live in the marital home.
- Custody of Minor Children: Divorce is an emotionally tumultuous time in the life of a child. Remaining in the same house in the same neighborhood with (roughly) the same schedule smooths the waters. For that reason, judges often allow spouses with custody of minor children to remain in the marital home.
Texas law requires all property divisions to be just and right divisions. “Just and right” basically means the divorce is not an unfair financial burden on either spouse.
On a related note, the community and separate property line is often blurry, If Husband cashed in his stock options, which he acquired before the marriage, to fund a major remodel, a Ft. Worth family law attorney could argue that the house is his separate property, or that he is at least entitled to a disproportionate share of any sales proceeds. More on that below.
Division Options
Selling the house and proportionally dividing the proceeds is the easiest, cleanest, and usually quickest way to dispose of a marital residence and distribute the proceeds. But this option is not always the best alternative.
Market conditions (buyers’ or sellers’ market) directly affect real estate prices. Because of this uncertainty, spouses often disagree on crucial sales figures, such as the initial asking price and the bottom-line sales price. In these cases, a Ft Worth family law attorney usually partners with a realtor or other real estate professional.
This professional usually also weighs in on the question of whether it is best to sell the house now or wait for market conditions to improve, and sales prices to rise.
If a quick sale is not feasible, either due to economic conditions or the aforementioned community property factors, one spouse typically retains title to the home, and the other spouse receives a lien for their share of the equity at the time of divorce. That equity share varies, as outlined above.
Incidentally, divorce changes the deed, but not the note. If the titled spouse wants to remove the other spouse’s name from the note, they must usually refinance the property.
Count on a Savvy Tarrant County Attorney
Community property is usually, but not always, divided 50-50. For a confidential consultation with an experienced family law attorney in Fort Worth, contact the Law Office of Kyle Whitaker by calling 817-332-7703 or visiting us online now. We routinely handle matters in Tarrant County and nearby jurisdictions.