The house a couple lives in is probably the asset that more people fight over than any other. While other major holdings like retirement accounts can also become a focal point in the divorce, the house has both sentimental and financial value.
Most couples divorcing in Texas will find that their home is at least partially community property. Each spouse has a right to some of its equity, even if only one spouse currently lives in the home.
However, there are situations in which one spouse keeps the house as their separate property. When is a home typically the property of only one spouse?
When a spouse owned the property prior to marriage
Any assets owned before someone gets married remain their separate property when they divorce. Unless they commingle ownership of the property by formally giving ownership to a spouse or by allowing their spouse to invest in the property, a house owned before marriage will usually remain separate property in a divorce.
When one spouse inherited the house
It is relatively common for families to pass real estate down from one generation to the next. If you inherited a house or farmland from your family, that will typically remain your separate property.
However, as with the house owned prior to marriage, inherited houses can become vulnerable through commingling or through the investments of the non-owner spouse in the property’s maintenance and financial upkeep.
When there’s a marital agreement that addresses the house
Maybe you owned the house only partially prior to marriage and signed a prenuptial agreement. Perhaps you received a personal injury settlement because of a car crash during your marriage, so you executed a postnuptial agreement when you invested your compensation in the purchase of a home. If you have a marital agreement designating the house as separate property, that may protect it from division in the divorce.
Barring these scenarios, most other situations will result in a couple either needing to sell the home during their divorce and split the proceeds or find a way for one spouse to buy the other out of the property. Your family law attorney can review your options with you.