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If you are going through a divorce in Texas, there may seem to be endless uncertainties before you. One of your primary concerns may be where you will live and who will get the marital home. The home is, after all, not just one of a couple’s most substantial assets, but also one that can be filled with emotional attachment. Who will receive the marital home, the home you lived in as a married couple, however, will require a fact specific analysis of a variety of different factors.

Who Gets the Marital Home in a Texas Divorce?

For starters, you may be curious about living arrangements while a divorce is pending. In Texas, both spouses usually have a right to live in the home prior to a divorce being finalized. There are, however, exceptions. There are times when one spouse can be excluded from the home and this exclusion can be accomplished by filing a motion for a temporary injunction once a divorce has been initiated. After a hearing on the temporary injunction, the judge has the authority to exclude a spouse form the home based on a number of different reasons. There may be a protective order in place that would merit granting the temporary injunction. There may be the concern that the spouse’s actions are diminishing the property’s value and this may also merit the granting of a temporary injunction.

In regard to who will get possession of the marital home in a divorce, the analysis will start with whether or not the home is considered community property or separate property. Community property is usually that property which has been acquired over the course of a marriage. If the marital home was purchased while you were married and not prior, it is likely going to be considered community property. This will hold true regardless of whose name is listed on the property deed.

Separate property, on the other hand, is that property acquired prior to marriage. Gifts and inheritance one spouse received individually whether before or during a marriage will also be considered separate property. If a home was acquired prior to marriage, such as one spouse bought it prior to the marriage and the other spouse moved in after they got married, then it may very well be that the home will be considered the separate property of the spouse that purchased the home. It is important to realize, however, that separate property can become marital property. For instance, one spouse may have purchased the home prior to marriage, but, over the course of the marriage, the other spouse may have made significant contributions to improving the home or may have paid the mortgage. This may convert the home from being considered separate property to being considered community property.

If the home is deemed to be separate property, it will remain with the spouse who is bought and owns it. If the home is deemed to be community property and the spouses are unable to reach an agreement as to how to divide community property, then the court will be tasked with dividing the community property. The court will have wide discretion in how to divide community property and will considered a number of factors in the dividing process including the relative incomes of both spouses and the financial needs of each spouse.

In dividing the house as community property, the court has a number of options on how to divide such an asset. The court may grant ownership to one spouse and order the other spouse to buy out the other spouse’s interest in the home. Alternatively, the court may award the spouse who does not get ownership of the home other assets to offset the value that spouse held in the home. If these options do not work, the court may order the house sold and the proceeds from the sale split.

Texas Family Law Attorneys

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