Frequently Asked Questions: Dividing Your Home During Divorce

June 01, 2013

Property division can be one of the most challenging parts of a divorce. You and your spouse must determine who should have what to make the split "fair." That is no easy task, especially when you own a home together. Even if you know who is going to keep the home, you must determine how the other spouse will be compensated for his or her ownership interest in the home and how that will affect the division of the rest of your community property.

Below are some frequently asked questions about dividing your home during divorce. The answers are general and are not legal advice. Please contact an experienced family law attorney to discuss property division during your divorce.

Is The Homestead Considered "Community Property" In A Texas Divorce?

In most cases, spouses purchase their homes during marriage, and any asset purchased during marriage is considered community property. Like other community property, the home must be divided in a matter that is "just and right."

What If I Owned My Home Before Marriage?

If you bought your home before marriage and the title is in your name alone, the home may be separate property, which means it belongs to you and you alone. In most cases, however, community funds are used on the home, creating a community property interest in the home.

For example, it is common for one spouse to purchase a home, marry and use community funds for mortgage payments. When that happens, at least part of the home will be community property. The same is true when a home is refinanced during marriage or if a spouse's contribution to the home increased its value.

Note: Even if the homestead is separate property and title is in one spouse's name, it cannot be sold or mortgaged during the marriage or divorce without the consent of both spouses.

How Will My Divorce Affect My Mortgage?

Divorce does not affect your obligation to your creditors. This is true even if your spouse gets the home and a court order requires him or her to make mortgage payments. If your spouse defaults, creditors can come after you. The only way to fully avoid joint liability on the mortgage is to sell the home or refinance the mortgage in the name of the spouse who keeps the home. However, the court cannot make a party refinance a home. In order to protect the spouse that is not awarded the home, there are real property documents that the court can force a party to sign when they are to take over the mortgage in full.

What If Neither Party Can Afford To Keep The Home?

Many married people will use two incomes to determine how much they can spend on a home. During divorce, however, they find that neither party has the financial means to pay the mortgage and maintain the home on one income. In these cases, courts will sell the home and split the proceeds between the spouses.

How Can I Determine How Much My Home Is Worth?

Determining fair market value of your home is only part of the equation. There are other factors to consider when determining how much your home is worth for divorce purposes, including taxes, maintenance and refinancing costs.

Should I Purchase A New Home During My Divorce?

If you are considering buying a new home or other substantial property during divorce, you may want to wait until the divorce is finalized. Anything bought during divorce is considered property purchased during marriage and is, thus, community property. Even if your name is on the title to your new home, your spouse will have an ownership interest in it. Do not purchase any significant assets while you are still married without first speaking to an experienced family law attorney.

An Attorney Can Help

Dividing your home during divorce does not have to be stressful, though there are many factors to consider. An experienced family law attorney can help you evaluate your options, determine what is best for you and, if necessary, fight for your best interests at the negotiation table or in court.

Article provided by Kerr, Hendershot & Cannon, P.C.
Visit us at http://www.khcgalvestonfamilylaw.com/