Who Gets the House in a Divorce in Texas? Understanding Texas Community Property Laws
When a marriage ends, one of the most emotionally and financially complex issues couples face is determining who gets the house. In Texas, this question isn’t always straightforward. The state’s community property laws add layers of complexity that require careful legal interpretation and strategy. This comprehensive guide is designed to answer one of the most common and critical questions divorcing couples face: “In a divorce, who gets the house in Texas?”
Whether you’re considering divorce or already in the midst of the process, understanding how Texas law approaches property division — especially the marital home — can help you make informed decisions and protect your financial future.
Texas Is a Community Property State
To understand who gets the house in a divorce in Texas, you first need to grasp how property laws work in the state. Texas is one of only a few states that follow the community property system. Under Texas law, most property acquired by either spouse during the marriage is considered “community property,” which means it is jointly owned by both spouses.
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Community property can include:
- Income earned by either spouse during the marriage
- Real estate purchased during the marriage
- Retirement accounts, investment accounts, and savings accumulated during the marriage
- Personal property such as vehicles, furniture, and other valuables acquired during the marriage
On the other hand, “separate property” refers to assets one spouse owned before the marriage or acquired during the marriage as a gift or inheritance. Separate property is not subject to division and remains with the original owner.
So, in a divorce, who gets the house in Texas? That depends largely on whether the house is considered community or separate property.
Is the House Community or Separate Property?
Determining whether the house is community or separate property is a critical first step in answering who gets the house in a divorce in Texas. Here’s how it generally breaks down:
- If the house was purchased during the marriage, it is almost always community property—even if only one spouse’s name is on the deed or mortgage.
- If the house was purchased before the marriage, it is generally considered separate property. However, if community funds (such as joint income or marital assets) were used to pay the mortgage or make improvements, the other spouse may have a reimbursement claim.
It’s also worth noting that if a house is gifted or inherited by one spouse, it may be considered separate property—provided it was not commingled with community assets or retitled in both names.
Factors Courts Consider in Dividing the Home
While Texas law presumes that community property should be divided equally, the court is not required to split everything 50/50. Instead, the court must divide community property in a way that is “just and right,” which can mean something closer to an equitable distribution based on the circumstances of the case.
When determining who gets the house in a divorce in Texas, courts consider factors such as:
- Each spouse’s income and earning capacity
- The financial needs and obligations of each spouse
- Custody of children (who will remain in the home, if applicable)
- Fault in the breakup of the marriage (e.g., infidelity, cruelty)
- Health and age of each spouse
- Whether one spouse made significant contributions to the other’s career or education
In many cases, the spouse who has primary custody of the children may be awarded the family home, especially if doing so minimizes disruption in the children’s lives.
Options for Handling the Family Home
There are several potential outcomes when dividing the family home in a Texas divorce:
1. One Spouse Buys Out the Other
This is one of the most common outcomes. One spouse keeps the home and pays the other spouse their share of the home’s equity. This often requires refinancing the mortgage solely in the buying spouse’s name.
2. Sell the House and Split the Proceeds
If neither spouse can afford to buy out the other—or if both parties agree—it may make the most sense to sell the home and divide the proceeds based on the court’s determination of what’s fair.
3. Deferred Sale
In some situations, especially when children are involved, the court may order a deferred sale of the home. This means one spouse (usually the custodial parent) stays in the home for a set period before it is sold.
4. Co-ownership After Divorce
Although less common and often complex, some ex-spouses choose to co-own the home for a time. This can work in situations where financial arrangements are amicable and clearly defined.
Protecting Your Rights in a Texas Divorce
Because the family home is often the largest asset in a marriage, it’s essential to work with an experienced attorney who can help protect your interests. Whether you’re trying to keep the home or want to ensure a fair division, knowing your rights and understanding Texas community property laws is key.
Each divorce is unique, and a thorough legal analysis of your specific situation is crucial to determining the best course of action. Financial appraisals, mortgage balances, and tracing separate property claims are all vital components of the process.
Why Choose The Levinson Law Firm?
At The Levinson Law Firm, we are a trusted name in Texas family law with a deep understanding of what’s at stake during a divorce. Located in the heart of San Antonio, Texas, our firm brings over 30 years of experience to every case we handle. We are committed to delivering personalized, results-driven legal representation to individuals navigating the challenges of divorce.
We have helped countless clients across San Antonio and surrounding areas protect their rights, secure their futures, and move forward with confidence. Whether you’re concerned about who gets the house in a divorce in Texas, custody issues, or the division of other marital assets, our team is ready to help you every step of the way.
Get the Legal Guidance You Need. Contact The Levinson Law Firm Today
Deciding who gets the house in a divorce in Texas is never simple, but understanding Texas community property laws gives you a stronger foundation to advocate for your future. From evaluating ownership to negotiating terms or presenting your case in court, a skilled divorce attorney can be your strongest ally.
If you’re facing a divorce in San Antonio and are unsure about your rights regarding your home or other marital property, don’t wait. Contact The Levinson Law Firm today to schedule your free consultation. Let us put our decades of experience to work for you and help you achieve the best possible outcome in your divorce.
FAQs
Not necessarily. While Texas is a community property state, the court aims for a “just and right” division, which may not always mean a 50/50 split. The judge considers various factors like income, custody, and financial need.
Ownership alone doesn’t determine who gets the house. If the home was purchased during the marriage using community funds, it may still be considered community property—even if only one name is on the deed.
If the home is jointly titled and considered community property, both spouses have legal rights to it. The court may require one spouse to refinance the mortgage or sell the home to divide the value.
If both spouses want the home, the court may consider factors like who has primary custody of the children or who can afford to buy out the other’s share. Alternatively, the judge may order the home to be sold and the proceeds divided.
The equity—the home’s value minus any remaining mortgage—is generally divided as part of the overall property settlement. One spouse may pay the other a lump sum or the house may be sold to divide the equity fairly.
A home purchased before marriage is typically considered separate property. However, if community funds were used to pay the mortgage or improve the property, the other spouse might have a claim to reimbursement.
