Divorce is an emotional and challenging process. It requires you to change course and envision a different sort of future. Suddenly, you don’t know how things in your life are going to shape up. How often will you see your kids? Will you get remarried? How are you going to pay your bills?
One question that’s the most daunting to you is: Who gets the house in the divorce? You’re worried you won’t have a stable place to live or the assets to purchase a new home, if need be. What if the Judge doesn’t rule in your favor and you’re left with nothing? Let’s take a look at Texas law when it comes to divorce and property division. That way, you’ll know what to expect when going through your divorce proceedings.
Property Division in Texas - Real Property, Assets and Debts
Texas is one of nine states in the United States that has community property laws. This applies to divorce because both spouses equally own any property that they acquire during marriage, be it money, debts, or physical property, like a home. In a divorce, a judge may rule that one spouse gets the home while the other gets things like investment assets or funds from retirement accounts to ensure that it’s a just and right division, depending on the facts of each case. The spouses can also agree to sell the home and split the profits down the middle.
If a spouse has separate property, it will not be included in a community property split. Separate property is defined as property that was acquired before a marriage, as a gift, from an inheritance, or as a recovery from a personal injury claim.
Figuring Out Who Gets the Home in The Divorce Process
Since ex-spouses typically don’t want to live the in the same home, they will need to decide who gets the house, or a Judge will make the decision for them. The judge will look at a few things. For example, if it’s a fault divorce, meaning one of the spouses is at fault, that will weigh into the judge’s decision.
One of the fault grounds is cruelty, although not specifically defined in the Texas family code. Cruel treatment can be defined in a number of ways, but it is essentially when a spouse inflicts harm or suffering on the other spouse. Every case is judged differently since there is not one definition of cruelty that judges follow.
Other fault grounds include a felony conviction (during the marriage), where one spouse is in prison for at least a year, proven adultery, and abandonment for a one-year period of time.
Aside from the fault grounds for divorce, the judge will determine who gets the house based on which spouse is mostly looking after the children, what the children and the spouses need, how much each spouse earns, what the spouses’ educational backgrounds are, the spouses’ ages and how healthy they are.
There are some other factors that may come into consideration as to how property is divided in a Texas divorce. The judge may also look at the size of the community property and the separate property owned by the spouses, as well as any gifts one spouse gives to another. If one spouse gives another a gift using community property money, then that gift is now separate property. Misuse of community property money (let’s say, a spouse made a bad investment with the funds) could be weighed.
If the spouses agree on who gets the home, and they are doing a no-fault divorce (a majority of divorces in Texas are no-fault), then they will ask the judge to approve an agreement and include it in the final decree of divorce.
Why Hire a Lawyer for Your Divorce in Texas?
Before you and your soon-to-be ex-spouse talk about property division, it’s best to consult a lawyer for many reasons.
A Houston divorce lawyer will ensure that your rights to the property and support you need to continue on with the rest of your life are protected. You may be too emotional to think logically about the situation, so you’re going to need an outside perspective from an experienced professional who can guide you the right way. You’ll need to think about your needs for several years to come, which a lawyer can help you determine.
Even if you don’t get the house in the divorce and the judge rules that your spouse is responsible for paying off the mortgage, you’re not off the hook if your spouse fails to pay. The lender could still come after you. Hiring a lawyer could safeguard you against this situation and other possible unforeseen consequences of a divorce.
If you are attempting to file a fault grounds divorce, you could lose if you don’t have the proper evidence to prove your claim. A lawyer will be able to guide you and tell you what you need to ensure a judge will take your claim into consideration.
Property division cases are very specific and can get complicated. Money issues are never easy, but they’re especially difficult when two soon-to-be ex-spouses are discussing them. If you aren’t getting along with your spouse already or you just want to make sure you’re protected in the divorce, it’s best to consult with a lawyer who is on your side throughout the entire process.
The experienced divorce attorneys at Boudreaux | Hunter & Associates, LLC are located in Houston and are available to consult with you if you are considering divorce, or already in the process of filing for divorce in Texas. We can provide valuable insight to the complex nature of these cases. You can learn more about our divorce representation here, or contact our office now to schedule a confidential consultation.