community property

How to Divide a Marital Home in a Texas Divorce   Recently updated !


Marriage makes two individuals become one. During the whole period of marriage, couples acquire properties which most of the time are jointly owned.

Problems may arise when a couple decides to get divorced. Division of a marital home could get difficult. Separation of assets might lead into conflict and we might not properly exercise our rights over our properties if we do not know the laws that govern it.

To understand better the context of property relations between the husband and wife in Texas, let us have an overview of the governing laws in marriage and properties.

The State of Texas follow a community property in marriage where most of the property acquired, that was not received as an individual gift or inheritance, during marriage belongs to both spouses.

Texas family law defines community property as the property and debt acquired from the moment of the marriage until the time of the termination of the marriage. This can be divided in the event of divorce.

An asset can be free from division when one of the spouses shall prove by clear and convincing evidence that the asset is his or her separate property. Any property acquired before the marriage, called the separate property, shall stay with the person who acquired it.

Texas law provides that if you and your spouse have purchased a house after being married, it is presumed that the house is your community property. Both of you shall have the same rights for the said house.

On the other hand, a piece of land that you have inherited from your parents becomes your separate property and shall be awarded to you upon divorcing your spouse. In addition, things that you have bought before being married shall have your full rights. 

So, how do we divide a marital home of a divorced Texan couple? Only the courts have the full discretion on these matters.

There are many factors that a judge may take into account while deciding the division of the properties as long as it follows the just and right procedure. There are some judges who may look at on the abuses connected to the marriage and use it as reference. Many also may decide to “punish” the spouse who has been linked in misconducts involving money such as swindling and fraud.

The length of the marriage or financial capacity of the spouses also tends to be a factor. In Texas, the marital home is one of the biggest assets that the couples may divide.

In most cases, judges award the marital home to the spouse who gains custody of the child.

Ideally, however, couples can reach into a settlement in dividing their properties. One spouse may buy out the other spouse and refinance the house. Or, as the court may preferably decide, they may sell the home and equally divide its proceeds.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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