Getting divorced is an emotionally taxing experience. In addition to separating romantically, divorce often means divvying up your property between one another, including what may have been the biggest investment for the both of you—the marital home. If you’ve been worried about losing your home in a divorce, read on to learn about how the marital home is divided in a divorce.
Community vs. Separate Property
The first issue to determine in deciding who gets the house in a divorce is whether the home is community or separate property. Community property is physical property, debt, or money that was acquired during the marriage. Community property must be divided between parties in a manner that is “just and right.” However, if property was acquired before the marriage, it is considered separate property and can only be awarded to the spouse who originally owned it. For example, if the wife purchased her home the year before she got married, she would be the only party entitled to the home during the divorce. Therefore, if the house was purchased before the marriage, the question of who gets it is easy. Only when the home is legally considered “community property” does this question become more complicated.
Mediation: Keeping the Discussion Between the Couple
Because most judges require that couples go through mediation, several issues, including child custody and the division of property are often worked out in the process. You may be surprised to know that divorcing couples are often capable of coming to a decision on who gets the marital home through negotiation, even if both parties thought the issues wouldn’t be easily solved. This is one of the main reasons that judges require mediation.
Mediation typically occurs with the couple meets (usually on their schedule), each with their own attorneys, while a single mediator attempts to help resolve the issues. Often times, couples are required to make certain concessions in order to get the things that they want. For example, if the wife wants the house, the husband may ask that the wife pay the couple’s credit card debt in exchange. For a successful mediation, however, it is imperative that both parties approach it with an open mind and a willingness to concede on certain issues.
Litigation: The Judge’s Decision
While family law trials are becoming rarer, they do happen. And, assuming a divorcing couple is unable to decide who gets the marital home through mediation, the judge will have to make that determination for them. If a judge has to decide who gets the home, he or she will consider a number of factors. For example, if there are children, the judge will likely (but not definitely) award the home to the spouse who will have primary physical custody. If there are no children involved, the judge may also consider who is in a better position financially to maintain the home and make the mortgage payments. If neither party can afford the home on their own, the judge may simply order the couple to sell the home, pay off the mortgage, and split the remaining proceeds.
How a judge will determine who gets the marital home varies on a case-by-case basis. For example, if the wife’s elderly parents live near the home and she has to care for them on a regular basis, it may be more fair that she gets it. Or, if the wife has already been awarded a large sum of cash in the divorce, the judge may determine it is more equitable that the husband keep the home. Ultimately, though, the judge will consider what is “just and right” in making his determination.
For help navigating your Texas divorce and the division of the marital home, contact us at Goldsberry & Associates. Our team will work hard ensure that you get the best possible legal service when it comes to your Texas family law matter.