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Specialty tag(s): Dividing the Marital Home, Pre-Divorce Guidance, Divorce

Who Typically Gets the House in a Texas Divorce and What to do if You Want to Keep the House

Jonathan James | April 24, 2023

Boy looking at mother using digital tablet. Woman sitting with son at table in kitchen. She is working from home.

Who gets the house in a Texas divorce depends on whether the house is community property or separate property. In many divorces, the answer is “both of you,” but that’s not always the case.

What Is Community Property?

Community property is any property you and your spouse acquired together during your marriage. In most cases, regardless of the name on the deed, a house is considered community property if you and/or your spouse purchased it while you were married.

What Is Separate Property?

Separate property includes property you owned prior to marriage and any gifts you received while married, including inheritances. If you can prove that something is separate property, you keep it: It’s not subject to the division of assets in the divorce.

How to Keep Your House in a Texas Divorce if it’s Separate Property

In a Texas divorce, keeping the house if it’s separate property comes down to evidence. Without it, Texas law will presume that the house (and everything else you owned before filing for divorce) is community property. You’ll need documentation and a traceable paper trail to prove that the house is solely yours. Ideally, this documentation will outline the funds you used to purchase the property and show that the purchase either occurred before the marriage or during the marriage with separate property funds. A skilled divorce lawyer can assist you in gathering the necessary evidence.

Who Gets the House in a Texas Divorce if it’s Community Property?

In most marriages, spouses purchase a house together, and if this is your situation, the house will be part of the pool of community property that needs to be divided up. That means that in a Texas divorce, who gets the house will depend on the agreement you can work out with your spouse or on a judge’s ruling.

Working out a deal with your spouse is the best approach for how to keep your house in a Texas divorce. This may require one spouse to compensate the other for their share of the value of the house, or you might balance out their lost equity with other assets.

If a judge needs to step in and divide up your community property, they will consider factors including:

  • Each spouse’s income
  • The capacities and abilities of each spouse
  • The needs of each spouse
  • The degree of fault in ending the marriage
  • What benefits the spouse who was not at fault would have if the marriage had not ended
  • Physical conditions
  • Age differences
  • Education
  • Nature of the property
  • Child custody arrangements

The judge may award the house to one spouse (often this can be the custodial parent if children are involved), and in this case, they will often award other assets to the other spouse to offset the equity. A judge may also decide who gets the house in a Texas divorce and then order that spouse to buy out the other using a lien on the house to secure the buyout. But sometimes, neither of these options is viable in a Texas divorce, so keeping the house just is not possible. In this situation, a judge might order you to sell the house and divide the proceeds.

At Goranson Bain Ausley, we understand that in every Texas divorce, who gets the house is only one in a series of difficult questions that will have to be answered. Our experienced family law and divorce attorneys work hard to make the process of divorce as painless as it can be for each client. Our goal is to be a trusted advocate by your side and walk you through each step of the divorce process so you can make the best decisions for your future.

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Jonathan James is a highly skilled litigator and negotiator in high-conflict legal situations and consistently receives praise from his former clients for his integrity, professionalism, and responsiveness. Jonathan is Board-Certified by the Texas Board of Legal Specialization in family law and is a member of the State Bar of Texas. Additionally, he is trained in Collaborative Divorce and has been named a Super Lawyers Rising Star, 2019-2022 and Best Lawyer 2020-2021 and 2023 by The Best Lawyers in America.  

To learn more about, community and separate property in divorce, please contact Jonathan James at 214-903-4801.

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