What Happens to the Family Home in a Divorce?
Understanding what happens to the family home in a divorce is important for many couples. The future of the home can involve selling it, one spouse buying out the other, or even sharing ownership after the divorce. At The Farias Law Firm, we know the challenges involved in deciding the fate of your marital home. Whether it’s choosing between selling, buying out your former spouse, or considering shared ownership, our team is here to offer practical support and guidance tailored to your situation.
If you are ready to discuss your options and take the next steps, contact The Farias Law Firm at 713-226-7999. Our experienced legal professionals are here to assist you in making informed decisions about your family home and achieving a favorable outcome.
Legal Rights to the Family Home During Divorce
In Houston, Texas, the marital home is typically the most valuable asset to divide in a divorce. Texas is a community property state, meaning that property acquired during the marriage is considered marital property, regardless of who holds the title. This gives both spouses equal rights to the home until a court decides otherwise. Separate property, which includes assets owned before marriage or received as a gift or inheritance, is not subject to division.
The division of the marital home follows the principle of fair distribution, focusing on fairness over strict equality. Initially classified as a joint asset, the court can order the sale of the home or grant it to one spouse, considering factors like financial capacity and child custody. Texas courts aim to divide marital assets in a manner that is just and right, which may not necessarily mean a 50/50 split.
Early in the divorce process, living arrangements need to be resolved. Both spouses legally can reside in the family home until a court order changes this, which can lead to disputes, particularly with emotional attachments involved. In Texas, temporary orders can be issued to address who remains in the home during divorce proceedings. The court aims to minimize disruptions to children’s lives and ensure fair property distribution, often granting the custodial parent the right to remain in the marital home if it serves the best interests.
Determining Who Gets the Family Home
Deciding who keeps the family home during a divorce depends on several factors, including financial contributions, emotional attachments, and long-term goals. Key considerations include the family’s financial stability, the home’s value compared to the mortgage, and child custody arrangements.
Child Custody and the Marital Home
Child custody arrangements significantly influence who retains the family home after a divorce. Judges prioritize children’s stability, often resulting in the custodial parent keeping the home if financially feasible, to minimize negative impacts on the children.
During the divorce process, temporary possession requests can provide stability for children, especially when custody is contested. Such orders can grant the custodial parent exclusive occupancy rights, allowing children to stay in a familiar environment during proceedings.
Financial Considerations for Keeping the Home
One spouse’s ability to maintain mortgage payments without financial strain can result in them being awarded the home. However, this entails significant responsibilities and risks. For example, a custodial parent may become ‘house poor’ while covering all home-related costs, including child support.
Emotional Attachments and Practicality
Emotional ties to the family home can complicate decisions during a divorce. While homes often hold cherished memories, practical considerations should take precedence to ensure long-term stability and financial security.
Spouses with limited assets need to evaluate if keeping the home is worth sacrificing other assets. Judges may permit one parent or a former spouse to remain in the marital home to ensure post-divorce stability for children.
Options for Dividing the Family Home
Divorcing couples have several options for dividing the family home: selling the house, agreeing on a buyout, or co-owning the home post-divorce. Each method has its own advantages and challenges that must be carefully weighed.
Selling the Family Home
Selling the family home is often the simplest option. After subtracting the mortgage balance from the appraised value, the proceeds are divided between the spouses, providing a fresh start for both. Sometimes, courts recommend a deferred sale to provide stability for children.
Buyout Agreements
In a buyout agreement, one spouse buys the house from the other, potentially involving a transfer of equity. This arrangement allows one spouse to keep the home while compensating the other for their share. A legal professional should draft the property agreement to protect the interests of the person staying in the house.
If refinancing isn’t feasible, one spouse might assume the existing mortgage to keep the home, potentially offering other marital assets as compensation. It’s important to consider the risks, including potential issues with the home’s value and condition.
Co-owning the Home Post-Divorce
Co-owning the home post-divorce involves both spouses continuing to own the house for a set period. This can minimize disruption for children or allow time for a favorable market to sell. A co-ownership agreement can detail each party’s responsibilities, ensuring joint management of the home. However, co-ownership keeps both parties financially tied to the home, complicating future financial decisions.
Temporary Orders Affecting the Family Home
Temporary orders can immediately address issues like home possession during divorce proceedings. In some states, these orders take effect automatically upon filing for divorce and serving papers, detailing who stays in the family home and how mortgage payments will be handled.
Temporary restraining orders can prevent the sale, transfer, or mortgaging of the marital home until the divorce is finalized. Both partners must continue paying the mortgage, even if one spouse has moved out.
Temporary Restraining Orders on Property Sales
Judges may issue restraining orders to prohibit the sale of the marital home until the divorce is finalized. If one spouse is granted exclusive use, the other retains joint ownership but cannot enter without permission, keeping the property secure.
Temporary Possession Orders
Exclusive occupancy rights can be granted to the custodial parent or a spouse for safety reasons. A spouse can request a temporary possession order if there’s no agreement on who will stay, ensuring a stable environment for children and clarifying living arrangements during the divorce.
After filing for temporary possession, a hearing is scheduled, and the other spouse is notified. Both parties, including one party, present their cases during the hearing, and the court decides based on the family’s best interests.
Impact of Divorce on Home Equity
Divorce can greatly affect home equity, which is the part of the home’s value that each spouse is entitled to after subtracting any mortgage and debts. Home equity is figured out by taking the current market value of the house and subtracting what is still owed on it. This amount is important during divorce because it helps decide how marital assets will be divided.
Home equity loans linked to the family homestay are a joint responsibility unless the divorce agreement states otherwise. As part of the settlement, one spouse might take on the full responsibility for a home equity loan. Doing a title search during the divorce process is important to find any home equity loans and make sure all financial responsibilities are clear.
Court Involvement and Decisions About the Home
If divorcing couples can’t agree on what to do with the family home, the court will make the decision. A judge will hold a trial to decide who keeps the house if there’s no agreement during the divorce. Courts aim to divide marital assets fairly, looking at things like financial contributions, child custody, and what is best for the family.
Court involvement can be long and stressful, but it ensures a fair and just outcome. The court’s decision will be based on fairness, making sure both parties get their fair share of the marital property.
How The Farias Law Firm Can Help You
At The Farias Law Firm, we handle divorce and custody issues, providing a supportive environment for our clients. We understand the emotional challenges involved in divorce, and we make sure you feel supported every step of the way. Our team of experienced legal professionals is focused on meeting your needs and turning challenging divorce experiences into positive outcomes.
We offer mediation services to help guide you through the divorce process. Our client-focused approach means we listen to your needs and set realistic expectations. Known for being creative and determined to solve family law problems, we are committed to achieving the best results for you.
If you’re ready to address property division in your divorce, contact us today at 713-226-7999. Let us guide you toward a fair solution for dividing the family home.