In a divorce, all property that a married couple owns in their name must be divided between them. While the specific rules regarding property division upon divorce differ from state to state, Texas law requires property owned by a married couple to be subject to a just and right division at divorce.
Just and Right Division of Community Property
In general, the property a married couple acquired during marriage is considered to be community property that is divisible upon divorce. For example, when a couple buys a house and furniture together, they acquire property as co-owners rather than individual owners. Most couples do not distinguish ownership rights between them regarding the marital home and its furniture.
However, when a couple gets divorced, it is not practical for them to act as joint owners of their property. When the couple separates upon divorce, they cannot exercise exclusive use and control of property as when they used to live together. Consequently, the couple must divide property upon divorce.
The just and right division of community assets does not necessarily imply an equal division of property. Courts may consider facts that justify a division of marital assets where one spouse gets more property than the other spouse.
In contrast, all property that a spouse owns exclusively without the other spouse’s ownership rights is considered to be their separate property, which is not subject to a just and right division upon divorce.
Division of Real Estate
When it comes to dividing real property, such as the marital residence of the married couple, physically dividing the home is neither practical nor preferable. As a result, courts must determine the most equitable way to distribute the couple’s rights regarding such property.
Courts often consider the following ways of dividing the parties’ marital residence:
- Granting exclusive ownership to one party. A Texas court can award exclusive ownership of the marital home to one party and have them “buy out” the other spouse’s interest. This can be accomplished by awarding more personal property and money to the other spouse after divorce proceedings. Alternatively, the court can order the spouse possessing the home to pay the other’s share of the house if they end up moving out and selling it in the future.
- Selling the house and dividing the proceeds. Instead of awarding the house to one party over the other, a Texas court can order the sale of the home and have the parties split the proceeds. In this case, neither spouse gets ownership of the house, as their rights are simply liquidated upon its sale.
Factors Determining Who Gets the Home
Texas courts must look at the relevant circumstances of the marriage when dividing property upon divorce. As mentioned above, the division of property in Texas divorce cases is conducted or fairly. As a result, answering the question of who gets the house in a divorce depends on the specific facts of the case.
Courts have considered the following factors when determining which spouse gets the marital residence upon divorce:
- Conduct amounting to marital fault, such as adultery or cruelty
- The respective earning capacities of the parties
- The child’s interest in having a familiar, stable environment
- The necessity of excluding a party to prevent family violence
- Child support obligations
Reach Out to Kay Polk, Attorney at Law
Are you going through a difficult divorce and need legal counsel regarding issues such as property division? If so, you should contact the office of Kay Polk, Attorney at Law for quality legal representation. Attorney Polk is committed to protecting and advocating for your legal interests and rights.Call Kay Polk, Attorney at Law at (713) 234-6260 or contact her office online today.