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Will My Wife Get the House in A Divorce?

Boyd Family Law Dec. 29, 2021

In a high asset divorce, the most valuable assets are often the subject of disputes. The marital home, for example, is frequently the one asset neither spouse wants to give up. If you are worried that your wife will get your marital residence in a divorce, Fort Worth divorce attorney Jon Boyd discusses how the marital residence is typically handled in a Texas divorce.

Texas Property Laws

Texas law defines community property as any property acquired or earned during the marriage that is not separate property. Property held during the course of the marriage is, therefore, presumptively thought of as community property. A spouse who claims an asset is separate property must prove be prepared to back up that claim with clear and convincing evidence.

Separate property includes anything that belonged to one spouse before marriage and was kept separate throughout the marriage. In addition, income earned from separate property (such as interest on investments or rental income from real property) as well as gifts made to one spouse or an inheritance left to one spouse may also be considered separate property. One of the keys to keeping separate property separate is to avoid co-mingling. Co-mingling occurs when you have separate property that becomes marital property because of actions on your part that muddy the ownership waters. For example, if you receive an inheritance of $100,000 it would be separate property; however, if you use $50,000 of that inheritance as a down payment on a vacation home that you title jointly with your spouse, that $50,000 of equity is now probably marital property.

While separate property remains the property of the spouse who owns it in a divorce, community property must be divided in a “just and fair” manner. That does not always mean that community property is divided equally; however, there must be a reasonable basis for a division that significantly deviates from an equal division.

Is Our House Marital Property?

The marital home is almost always considered marital property if acquired during the marriage. Even if one of you owned the home prior to the marriage (making it separate property initially), it will probably be converted to marital property because the other spouse’s income and/or efforts contribute to the home. One of the few exceptions to this general rule is when the parties execute a pre-marital agreement that clearly designates the home as separate property in the event of a divorce.

Who Will Remain in The Home?

If the marital home is part of the division of property during a divorce, it obviously cannot be divided in half and split equally between the parties. Typically, one spouse will remain in the home and the other spouse will be awarded assets equal to his/her share of the equity in the home. For example, if the equity in the home is $500,000, the spouse who does not remain in the home might be awarded assets valued at $250,000. If both you and your spouse want to remain in the marital residence, the court will likely consider several factors when deciding who is awarded the home, such as:

  • Minor children – the primary reason why the wife was typically awarded the marital home in a divorce is that judges prefer to allow minor children to remain in their home and women were historically awarded custody of the children. Today, however, that is not always the case. A judge will, however, consider what is in the best interest of the children when deciding who gets the home.

  • Financial resources – whoever is awarded the home must be in a position to be able to pay the mortgage (if applicable) and afford the maintenance and upkeep of the home.

  • Marital conduct – even in a no-fault divorce, negative conduct during the course of the marriage can negatively impact the division of assets during the divorce.

Contact a Fort Worth Divorce Attorney

If you are contemplating a high asset divorce and you are worried about who will get the house in the divorce, contact an experienced Fort Worth divorce attorney at Boyd Family Law to schedule your appointment today.