Is it easier to get rid of the spouse or the house? 

In many Texas divorces, the house is one of if not the major asset to divide in the property division part of the divorce. And it causes some of the most friction between the divorcing spouses. Maybe the spouse wants to try to keep the house; or, maybe the spouse wants to sell the house and take a share of the sales proceeds to buy a new house. It is important to make decisions about the house that are not based on pure emotion. The financial realities are important as well.

Here are some questions important to making decisions about what to do with the house in divorce:

  • What is the fair market value of the house?
  • How much equity is there in the house (value less debt)?
  • How much is the monthly payment on the house?
  • Are taxes and insurance escrowed or will those need to be paid annually from other funds?
  • Is the spouse that wants to keep the house employed making sufficient income to meet the financial commitment of the house?
  • What other assets are available in the division to accommodate awarding the house to one spouse?
  • Are there cash assets available to cover other emergency expenses?
  • How will maintenance be handled?
  • Is there a reason to refinance the mortgage?

Sometimes it is helpful to have the spouse who wants to keep the house meet with a financial planner to evaluate cash flow and asset management. This person can help the spouse decide if keeping the house meets with that spouse’s long term financial goals.

In Texas, generally a judge cannot order a spouse to refinance the house. Where the mortgage debt is incurred by both parties, both parties will continue to be named on that debt afterwards. The spouse agreeing to pay for the house will usually execute a deed of trust to secure the assumption of the mortgage. This document gets filed in the deed records and provides the exiting spouse a remedy if the other spouse fails to make the payments.

Another problem to consider in deciding what happens to the house is that post-divorce, many people — especially women — have a lower credit score after divorce than during the marriage. Combine this with the reality that a single person has one income versus the possible double income of two working spouses, so after divorce, it may  not be as easy to get approved for the mortgage to buy a new house.

There are many factors that need to be considered surrounding the house in a divorce. The advice of a good divorce lawyer and even a financial planner can be very helpful in making these decisions.

Hat tip: It’s Harder to Divorce the House than the Spouse by Ashley Tate Cooper

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.