By Haley K. Burnside
In nearly every divorce consultation I have, one of the first questions is: “What is going to happen to the house?”
That question makes sense. For many families, the marital residence is the most valuable asset they own. It is also often tied to years of memories, stability for the children, and a person’s vision of what life will look like after the divorce.
Unfortunately, there is no universal answer to who gets the house. Like most issues in family law, the answer depends on the specific facts of the case.
Can One Spouse Be Awarded the Entire House?
Yes. Many people assume that if there is a house, it must be sold. That is not always true.
For example, imagine a marital estate worth $700,000. The house has $300,000 in equity, and the remaining assets consist of retirement accounts, cash, investments, or other property. In a situation like that, there may be enough assets available to offset the value of the house.
One spouse may be awarded the house while the other spouse receives a larger share of the retirement accounts or other assets. While the actual division is often more complicated than that, it illustrates how a court or settlement can allow one spouse to keep the home without requiring an immediate sale.
What Happens When Both Spouses Want the House?
This is where things become more complicated. When both spouses want the house, several important questions come into play.
Are There Children Involved?
If there are minor children, the court will often consider the practical realities of where those children will live.
For example, if one parent is awarded the right to determine the children’s primary residence, there may be an argument that allowing the children to remain in the home provides continuity and stability.
That does not automatically mean that parent will receive the house, but it is certainly a factor that may be considered.
Are There Separate Property Claims?
Another common issue involves characterization.
Suppose a husband owned a house before marriage, sold it during the marriage, and then used those proceeds as a significant contribution toward the purchase of a new home. Even if the new home was acquired during the marriage, there may be a separate property claim attached to part of the home’s value.
In that situation, the house may have both community and separate property components. Texas courts cannot divest a spouse of proven separate property. As a result, these cases often require tracing evidence and can become significantly more complicated than a straightforward community property division.
Can the Spouse Who Wants the House Actually Afford It?
This is one of the most important questions in many cases. It is common for a spouse to have a strong emotional attachment to the house. Sometimes that desire is driven by the children. Sometimes it is driven by the amount of work they have put into the home. Sometimes it is simply because they cannot imagine moving.
The problem is that wanting the house and being able to afford the house are two different things.
If the mortgage payment, taxes, insurance, and maintenance expenses are more than a spouse can reasonably handle on their post-divorce income, keeping the house may create financial problems that last for years.
There are situations where this concern can be addressed. For example, a spouse may be receiving substantial liquid assets or cash that can help support the cost of maintaining the property.
Other times, however, there simply are not enough assets available to make the numbers work.
Those can be difficult conversations. Sometimes the reality is that keeping the house would place someone in a financially dangerous position. In those situations, selling the house and moving forward with a clean financial break may be the better long-term solution.
When Selling the House Is the Best Option
In many divorces, the house represents most of the parties’ net worth.
If there are few other assets available for division and a significant amount of equity exists in the home, selling the house is often the most practical outcome.
The parties can agree on the listing process, sale terms, and how the proceeds will be divided once the transaction closes.
While that sounds straightforward, the details matter enormously.
The Biggest Mistake People Make With House Sale Provisions
Aside from disputes involving children, one of the most common post-divorce fights I see involves the sale of a house.
Poorly drafted sale provisions can create enormous problems.
Many people focus on the percentage split and assume that is enough. For example, they may have language that simply says each party receives fifty percent of the proceeds when the house sells. If any dispute arises during the sale process, that language will come back to bite you.
What happens if one spouse refuses to cooperate with the listing process?
Who gets to live in the house until it sells?
When does the other have to move out?
Who selects the realtor?
How are price reductions handled?
Who pays for repairs?
Who pays the mortgage while the property is on the market?
Who pays the utilities?
Who pays the property taxes?
These issues should be addressed in advance.
If they are not, the parties often find themselves back in court seeking enforcement orders, clarification, or additional relief. Those proceedings are expensive, time-consuming, and frequently avoidable with properly drafted language.
I am particularly cautious when there are concerns that one spouse may intentionally delay the sale process. If someone has demonstrated throughout the divorce that they are unlikely to cooperate, I generally do not want a situation where they have the ability to remain in the home indefinitely while the other party waits for their share of the equity.
Determining What the House Is Worth
Before anyone can be bought out of a house, the value of the property must be determined. In some cases, the parties agree on the value. Most of the time, appraisal is necessary.
Final Thoughts
The house often receives more attention than almost any other asset in a divorce, and for good reason. It is usually one of the largest assets the parties own, and it often carries emotional significance that goes far beyond its financial value.
Whether the house is awarded to one spouse, sold and divided, or complicated by separate property claims, there is rarely a one-size-fits-all answer. The right outcome depends on the unique facts of each case, the overall composition of the marital estate, the needs of any children involved, and the financial realities the parties will face after the divorce.