Texas Divorce Laws

Who Gets the House After a Texas Divorce?

By:
Sophia Merton
Updated
September 15, 2022

When you first realize your marriage is ending, there are probably millions of questions racing through your mind. As you cycle through the practical and financial repercussions of divorce, you’ll likely wonder: who gets the house after a Texas divorce?

The answer to this question has to do with whether the home is considered marital property or the separate property of one spouse.

In many cases, both parties technically get half of the house. Of course, dividing the property into two halves isn’t going to happen, so this can be dealt with in a number of different ways– for example, the house might be sold and the proceeds split between them or one person might stay in the house while the other spouse is awarded other assets to offset the value of the property.

This is an important question in any Texas divorce and not the most straightforward topic. Let’s take a closer look at what you need to know about the division of real property in a Texas divorce.

What Is Real Property in a Texas Divorce?

When you start the divorce process in Texas, you’re going to come across the term “real property.” This refers to land and any structures or anything that is attached to the land, such as houses, buildings, or fixtures.

porch with table and chairs at home awarded to one spouse in texas divorce

There's a good chance that your marital home is the biggest asset in play during your divorce.

Because they aren’t attached to the land, mobile homes aren’t considered real property. However, if you own the land that the mobile home sits on, the land itself would be considered real property.

Understanding Community and Separate Property in Texas

Before we talk about who gets the house after a Texas divorce, we need to take a look at the difference between community and separate property. Texas is one of the nine states in the U.S. that is a community property state as opposed to an equitable distribution state.

In community property states, assets and debts acquired during the marriage are considered joint property of both spouses. At the same time, though, most community property states allow spouses to own property individually as well.

When a marriage ends in Texas, each spouse gets to keep their separate property. Community property, on the other hand, is divided either through agreement or by the courts.

What Is Community Property?

Community property in Texas is all of the property that was purchased during the marriage with money that was earned during the marriage. You and your spouse can determine how to split your community property as a part of a divorce agreement. If the case gets to court, though, they will divide your property (including your house) for you.

suburban home awarded to one spouse in divorce in texas

If you and your spouse purchased a home together during your marriage, it is considered community property.

Texas courts pay particular attention to how the property was acquired and when it was acquired to help them decide how to divide it between spouses.

Texas courts won’t just split all community property in a just and right way, but they will also divide all community debts. In some cases, a court might order that division of property and debts be unequal when they deem it to be “just and right.”

The definition of community property according to Texas law is all of the property that was acquired by either spouse during a marriage, except for property that is considered separate property.

What Is Separate Property?

Any property that an individual owned before a marriage or that was received as a gift or inheritance during the marriage is considered separate property.

Separate property in Texas is:

  • Property that a spouse owned or claimed before the marriage
  • Property a spouse acquired during a marriage through descent or inheritance
  • Property a spouse acquires through a gift from the other spouse or a third party during the marriage
  • Recovery for personal injuries that a spouse sustained during the marriage (excluding any recovery during the marriage for loss of earning capacity)

Separate property can include real property that was bought with money that falls into the category of separate property– i.e., buying a house with funds you received as a gift would mean the property itself is considered separate property.

Texas community property laws dictate that courts assume any property that either spouse possesses during marriage and when the divorce is occurring is community property. If you believe that something is your own separate property, you will need to present “clear and convincing evidence” to the court.

What Happens to the House While a Texas Divorce Is Pending?

Considering that a normal Texas divorce can take anywhere between four months and a year to be finalized, you might be wondering what happens to the house before the divorce is final.

dark blue home exterior awarded to one spouse in texas divorce

Neither spouse is legally required to move out of the marital home while a divorce is pending. If you're considering moving out of the house before your divorce is final, it's a good idea to talk to your lawyer about the potential consequences of this action.

In most cases, both spouses have the right to live in the marital home during the time a divorce is pending. However, there are circumstances where one spouse can ask the court to exclude a spouse from the house.

Either spouse can file a motion for a temporary injunction after divorce has been initiated if they choose to. An injunction is an order from the court that prohibits one party from taking a certain action or orders one party to take a certain action.

A judge could exclude a spouse from the house after a temporary injunction hearing. This might be done because the property value is diminished through a spouse’s actions, because of a protective order, or for another reason. In some cases, this type of exclusion can span the full length of the divorce proceedings.

Who Gets the House After a Texas Divorce?

Now to answer the big question: who gets the house after a Texas divorce?

The answer is: it depends. One of the most important pieces of information is whether the house is considered community property or separate property.

moving boxes and supplies after texas divorce ordered to sell house

If your case goes to court, it's possible that a judge will order that the property is sold and the proceeds are split between both parties.

Any real property that is considered separate property cannot be awarded to the other spouse by the court. That being said, the spouse that claims to be the sole owner of the property is required to provide clear and convincing evidence that it is actually separate property and not community property.

So, if you can prove that your house is your own separate property (or if your spouse can prove that it is theirs,) the house will go to the person who proves that they are the sole owner.

Marital homes are often community property, though. It’s common for couples to purchase a house jointly after they marry, so many divorcing couples have to figure out how to deal with a home that is considered community property rather than separate property.

A home that is community property will need to be split during a Texas divorce. Since you can’t literally divide your house in half, the value of the home will need to be determined and any equity or debt will need to be split between the parties.

In this scenario, one of the parties may keep the home or it may be sold.

Some of the most common ways that the division of the marital home shakes out in a Texas divorce agreement include:

  • One spouse wants to stay in the home and the two parties agree to keep both the house and its associated debt
  • One spouse wants to keep the house and both parties agree to split the equity
  • One spouse wants to keep the house and the other party gets to keep other assets that offset the value they would have otherwise received through the division of the value of the home

When couples aren’t able to come to an agreement about how to divide the house, the court will decide for them. A judge might choose to award the house to one party or they might order that the house be sold.

Can I Prove That Property I Own Is Separate Property?

Yes, you can prove that the real estate you own is separate property.

Texas law begins with the assumption that any property you have before or during the process of divorce is community property. You will need to prove by clear and convincing evidence that the property you solely own is actually separate property.

It’s a good idea to work with a divorce attorney if you need to prove that your house is separate rather than community property. They will be able to help you gather evidence that is compelling enough to show the court that the home is, in fact, your own separate property.

It's generally recommended to work with a divorce lawyer if your divorce is in any way complicated. If you really want to represent yourself in your divorce, read this article about divorcing in Texas without a lawyer first.

What Happens If My Spouse and I Bought the House Together?

Though the share of first-time homeowners that are married has been declining nationally, more than half of first-time homeowners are still married couples. This means that there’s a solid chance that the home you own at the time of divorce was purchased once you were already married.

If you and your spouse didn’t sign a pre-nuptial agreement or a post-nuptial agreement that outlines what will happen to your house, and you aren’t able to reach an agreement in the form of a divorce settlement, a judge will divide the house in a way that is “just and right.”

While that might be well and good, the concept of the division being just and right can seem pretty vague to the layperson. Ultimately, a judge has a lot of leeway when it comes to how they split community property. There are a number of factors they will use to figure out what a just and right division is, including:

  • The relative need and financial condition of each spouse
  • Any income disparities that exist between the spouses
  • The abilities and capacities of each spouse
  • The physical condition of each spouse
  • The fault either or both parties had in the marriage ending
  • Any age disparity that exists between the spouses
  • Any benefits that a party without fault would have received if the marriage didn’t end
  • The separate estates of each spouse
  • The nature of the property that is being divided
  • The education of each spouse

Basically, the house could go to either spouse or a judge could order that the house is sold and the proceeds are split in a specific manner.

What Do I Get If My Spouse Gets the House?

A court might require that the person keeping the house buys out the other individual's interest in the home before refinancing the property if both parties have substantial equity in the home.

Another approach is awarding the person that isn’t receiving the house other assets to help offset the value of the property.

When these types of common options aren’t feasible, a judge can also order that the house is sold and the proceeds are split between the two spouses.

The unique circumstances of your marriage and life will inform who gets the house and how this is dealt with.

How Is Real Property Divided During a Divorce?

It’s possible that you and your spouse own more than just your marital home. Real estate investing is an increasingly popular way to diversify one’s investments, or maybe you and your spouse have a second home or a camp out in the woods.

Any real property that was purchased during the marriage– even if there is only one spouse’s name on the deed– is considered community property. All that matters in the eyes of the law is that the couple was married when the title to the property was acquired.

However, one person could purchase property with their own separate property, which would mean that the real property can still be considered separate even if it was purchased during the marriage. The spouse that owns the property will have to prove it is separate, however, as the court assumes all property acquired during the marriage is community property.

FAQ About Divorce and Real Estate

Whether you own your marital home or you have a real estate empire to your name, you probably have a lot more questions about how real property is divided in a Texas divorce. Let’s take a look at some of the questions frequently asked regarding this topic.

What If Real Estate Is Received as an Inheritance or Gift Jointly By Both Spouses?

We know that gifted property or inherited property is considered to be the separate property of the receiving spouse. What happens if you were both jointly gifted (or inherited) a property, though?

Basically, separate property that is received during the marriage is still considered separate property during a divorce. This means that each spouse already owns half of the property and are co-owners.

What If Only One Spouse’s Name Is on the Deed of a House Purchased During the Marriage?

Even if only one person is listed on the deed, any real property acquired during the marriage is considered under Texas law to be community property. The fact that only one person’s name is on the deed isn’t what’s important in the eyes of the law– the fact that the property was purchased during the marriage is what determines its status as community property.

However, there are a few exceptions to this general rule.

For example, if one spouse bought a property with their own separate property, the house would remain their own separate property in a divorce. However, the spouse that believes the house is their separate property will need to prove this as a part of the divorce proceedings.

What If We Refinanced a House That Is Separate Property During the Marriage?

If you refinanced a house that is separate property in your own name during your marriage, it will still be considered separate property during a divorce. That being said, if the refinance documents have both parties’ names on them, an argument could be made that the spouse that owns the house gave half of the house to their spouse as a gift. This would mean that each spouse owns half of the house as separate property.

If I Move Out During Divorce, Do I Give Up My Rights to the House?

Divorces are inherently difficult, and living together during the divorce proceedings can feel unworkable. You do not give up any of the rights you have to your marital house if you move out when the divorce is pending. However, it is possible that a judge will take your move out of the home into account when he or she is choosing how to split up your marital property.

Before you move out of the house, you'll want to talk to your lawyer about what the potential consequences could be in terms of how your real property is divided during divorce. It's also worth noting that it's important that you wait to start dating until your divorce is final, as this can technically be considered adultery and be used against you during the proceedings.

How Do You Sell the House After Divorce?

In some cases, a judge might order that the marital house is sold. In others, the couple might agree to a settlement agreement where the house will be sold.

If this occurs, both spouses will need to sign the paperwork at closing. The divorce decree should list important information about the sale, including how long the parties have to sell the house and a detailed legal description of the property.

How Do You Transfer Ownership After Divorce?

If one party is going to receive the home after the divorce, you might be wondering how to transfer ownership.

In your divorce decree, it should state who is going to receive the property as well as a detailed legal description of the property. On top of that, the final decree should state which party will now be responsible for covering all of the house’s expenses.

When one party is awarded the house with the signature of a judge on the decree, the other party will need to transfer all of their interest in the property to the party that is taking ownership of the house. This is done by signing a Special Warranty Deed. This paperwork is required to be filed in the property records of the County Clerk’s Office.

Can I Take My Name Off the Mortgage Post-Divorce?

According to the Census Bureau, the percentage of Texas homeowners with a mortgage is lower than the national average. That being said, around 58% of homeowners in the Lone Star State are still paying a mortgage, compared to the national average of 63.3%.

This means that there’s a good chance that you and your spouse still have a mortgage on your house at the time of your divorce. If both of your names are on the loan, you might be wondering whether you can take your name off the mortgage so you aren’t liable if your ex-spouse stops making payments or defaults on the loan.

Unfortunately, refinancing is the only way that you can get your name off of the home loan after divorce. The party that is keeping the house will need to refinance the mortgage in their name in order to remove your name from the mortgage.

This might not be a fast process because the bank will need to look at the assets and income of the spouse to find out whether they qualify to refinance the home loan.

In your final divorce decree, it should state whether the person that is keeping the marital house is required to refinance the mortgage. On top of that, it should mention the period of time in which the spouse is required to refinance the loan.

Texas courts don’t have the power to order a lender to give out a loan. Whether your spouse qualifies to refinance on their own is ultimately up to the bank. That being said, having the requirement to refinance the house can let you ask the court to enforce the decree through filing a motion if your ex doesn’t uphold their end of the bargain.

It is often advised that both spouses sign a document known as a Deed of Trust to Secure Assumption. This document lists the spouse that didn’t receive the home as the beneficiary and lays out all of the agreed-upon terms regarding what happens if the home-receiving spouse defaults on the mortgage.

While this isn’t a perfect solution because the spouse that didn’t receive the house can deal with negative credit repercussions if their ex doesn’t pay the mortgage, it does give them the right to foreclose on the property in the same way any other creditor would.

What If We Bought a House Together Before We Were Married?

If you are planning on getting married and buying a house, it’s generally a good idea to talk to an attorney about the potential repercussions of purchasing a property before you are legally married. They can help you understand what this could mean for property division in the event of divorce.

The reason that buying a house before marriage can be problematic is that it will create an undivided separate property interest in the property. This means that the right to enjoy and use the home will be equally shared by both parties.

If you were to get divorced in this scenario, the family courts won’t be able to divide up your separate property. All they can do is confirm separate property. From there, you’ll have to take the matter to the civil district court.

This means more legal fees, more time in court, and more headaches.

If you are set on buying property before you get married (after all, there are plenty of reasonable circumstances where this could make sense,) there are steps you can take ahead of time to ensure that you don’t end up complicating things down the road should the two of you decide to split up.

One option is to enter a partnership agreement that states what will happen if the marriage is dissolved, such as an agreement to sell the property and split the proceeds.

Divorce in Texas: Knowledge Is Power

There are few things in life as stressful as a divorce. Though it might be the last thing you want to think about, arming yourself with knowledge of the law can actually help to reduce your anxiety and stress around the topic. Once you have a better sense of what the divorce process will entail, you can be better prepared as the proceedings unfold.

Are you looking for more information about divorce in Texas? If so, be sure to check out our library of articles at TexasDivorceLaws.org.

Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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