For many Texas couples the house is the biggest thing they own together, and it is often the hardest thing to decide about when a marriage ends.
Key Takeaways
- Texas presumes that property either spouse has during or at the end of a marriage is community property, so a home bought during the marriage usually starts out as shared.
- A spouse who claims the home, or part of its value, as separate property has to prove it with clear and convincing evidence, which usually means records.
- The court divides the community estate in a way it considers “just and right,” and that does not always mean a 50/50 split.
When a marriage is coming apart, the family home stops being just a place to live. It holds your savings, your children’s routines, and years of memories, and it may also be the asset you and your spouse are most likely to disagree about. One of you may want to stay. One of you may need to sell. And you may not be sure the house even counts as shared property in the first place.
Those questions have answers under Texas law, but how they apply depends on when the home was bought, how it was paid for, and what has happened to it since. At the Law Offices of Lisa G. Garza, P.C., our team has spent over 40 years combined helping Texas families work through exactly these decisions, and you do not have to sort them out alone.
Is the Home Community Property or Separate Property?
Texas is a community property state. Under Section 3.002 of the Texas Family Code, community property is the property, other than separate property, that either spouse acquired during the marriage. Separate property is defined in Section 3.001 and includes property a spouse owned or claimed before the marriage and property acquired during the marriage by gift, devise, or descent.
In practical terms, that usually means:
- A home you and your spouse bought together after the wedding is likely community property, no matter whose name is on the deed.
- A home one spouse owned before the marriage generally starts out as that spouse’s separate property.
- A home one spouse inherited, or received as a gift, during the marriage may also be separate property.
Real life is rarely that tidy. A house bought before the marriage may have been refinanced, paid down with paychecks earned during the marriage, or improved with shared money. Those facts can create claims between the community estate and a spouse’s separate estate, and they are a common source of dispute.
The Burden Is on the Spouse Claiming Separate Property
Section 3.003 says that property possessed by either spouse during or on dissolution of the marriage is presumed to be community property. To overcome that presumption, the spouse claiming the property as separate must prove it by clear and convincing evidence.
That is a higher standard than most people expect, and memory alone rarely meets it. If you believe the home, or part of its value, is your separate property, the documents that tend to matter include:
- Closing statements and the deed from the original purchase
- Records showing where the down payment came from
- Wills, estate documents, or gift letters if the home or the money for it was inherited or given to you
- Mortgage and refinance records showing how the loan was paid over time
Gathering these early can make a real difference, because tracing money through years of accounts is much harder once statements are lost.
How Texas Courts Divide the Home
When the home is community property, the court does not automatically split it down the middle. Section 7.001 directs the court to divide the estate of the parties in a manner it deems “just and right,” having due regard for the rights of each party and any children of the marriage.
That gives the court room to look at the whole picture, not just the house. A judge may consider the circumstances of each spouse and the needs of the children when deciding how the community estate should be divided. Because the home is weighed alongside everything else, one spouse may keep the house while the other receives retirement funds, savings, or other assets of comparable value.
Common Ways Couples Resolve the House
Most cases end with one of a few outcomes:
- One spouse keeps the home and buys out the other. This usually requires an appraisal, a clear picture of the remaining mortgage, and a plan to refinance so the departing spouse is no longer on the loan.
- The home is sold and the proceeds are divided. This can be the cleanest option when neither spouse can afford the home alone.
- The home is awarded to one spouse and offset with other assets. Instead of a cash buyout, the other spouse receives a larger share of something else.
Each option has trade-offs. Keeping the house can give children stability, but it can also leave one spouse carrying a payment, taxes, insurance, and repairs on a single income. Selling ends the shared obligation but means a move during an already hard time.
Who Lives in the House While the Divorce Is Pending?
Under Section 6.502, while a divorce is pending the court may make temporary orders, including an order awarding one spouse exclusive occupancy of the residence during the case. Temporary orders can also address who pays which bills and how the parties’ property is protected until the case is finished.
Texas also has a waiting period. Under Section 6.702, the court generally may not grant a divorce before the 60th day after the suit was filed, with limited exceptions involving family violence. Temporary orders help keep things steady during that time and often longer, since many cases take more than 60 days to resolve.
Protect Your Home and Your Future
The decisions you make about the family home can shape your finances for years. Whether you want to keep the house, need a fair share of its value, or are not sure what part of it is yours, it helps to understand your options before you agree to anything.
The Law Offices of Lisa G. Garza, P.C. helps Texas families protect what matters most during divorce. Contact our office to schedule a consultation and talk through what the right outcome for your home could look like.