We know there are many questions that come to mind when a relationship is ending like: “In a Texas divorce, who gets the house?” Divorcing couples have asked this question so frequently that it’s become cliché. But… who does get the house? The fact that we still don’t what know the answer is to this question points to a greater confusion about how to separate property in Texas after a divorce. It doesn’t help that there are different kinds of property and that the way that property is dolled out is dependent upon where you’re getting your divorce.

You already have so many things to consider during a divorce, and sadly, things can become messy. A spouse might be lying about income to avoid child support, or you might need to enlist a Houston custody lawyer for fairness in regards to children.

But figuring out how to split up your property can feel like the mayhem that ensues after someone finally breaks open a piñata. Before you give up on ever seeing your house (or car, or dog, or TV) again, learn about the difference between marital, separate and community property and what these distinctions can mean for a Texas divorce agreement.

How to Separate Property in a Texas Divorce

Separating property in a Texas divorce can seem as clear as mud. I inherited a farm from my grandmother; does my ex-spouse own part of that? My wife and I bought a car together—I paid for it, but we used her name on all the paperwork; who does our sexy, red Corvette belong to? My wife had higher earnings than I did during our marriage; how destitute is my bank account looking, exactly?

The first step to answering questions like these is to figure out which parts of your property are considered separate property and which are considered marital property. In Texas, your property is considered separate property if:

  • You inherited it or received it as a gift (both before of after marriage)
  • You owned it prior to marriage
  • You received the recovery for personal injuries sustained during your marriage (except for recovery for the loss of your earning capacity during marriage)

That means, the spouse of the person who inherited the farm in the above example will not be raising chickens and growing corn anytime soon. In other words, the answer to: “In a Texas divorce, who gets the house?” would still not be clear cut as separate property for many people.

Marital Property in a Texas Divorce

Generally, anything that is not separate property in a Texas divorce is marital property (although the two can get mixed up). Meaning that since the Corvette and wife’s income are assets earned and used by both spouses after marriage, those assets are marital property.

Even separate property can become marital property if it becomes commingled. Commingling takes place when assets become so mixed up with each other that it’s impossible to tell what belongs to whom.

For example, say a wife inherits $10,000, which is separate. She adds the money to the bank account she shares with her husband. They both draw upon and add to the money, and pretty soon, no-one can make heads or tails of who has taken away more or contributed more to the $10,000. That $10,000 is now considered marital property.

Marital property is obviously a much, much bigger category than separate property, so it should come as no surprise then that states have different ways of handling how that property is split. The majority of states are what’s called common property states, but Texas is one of 9 states that are considered community property states (some states use a mix of both common and community property states). You’ll notice that our original question of a Texas divorce and who gets the house wasn’t exactly answered. That’s because Texas is one of nine community property states in the US.

Community Property: How Property is Split in Texas

Texans are known for their hospitality, and, for better or worse, the “what’s mine is yours” mentality is what characterizes the splitting up of property in community property states. In other words, marital property in Texas is one in the same with community property, and community property is split 50/50 between the two spouses.

Unless it is written out and agreed upon that property obtained during a marriage is separate property, it is presumed that all property obtained during a marriage is community property.

So, in Texas, even though the divorced husband’s name wasn’t on any of the Corvette’s paperwork, he’s still entitled to “half” of the car—it wouldn’t qualify as separate property in a Texas divorce. And in Texas, the divorced husband without a large salary will not have to be quite so worried about buying groceries. In a common law state (again, for better or for worse), whose name was on the lease and who contributed the most money could potentially have made the outcome of those scenarios very different.

So, who in a Texas divorce gets the house? Technically, both parties get half. However, unless you and your ex hash out a civil chainsaw and demolition plan to literally split the house, someone has to get it.

Knowing that in reality, keeping the house generally has to resolve similarly to separating property in a Texas divorce, some considerations must be made. If someone used separate money to pay for the down payment on the house, the house might be theirs. By the same token, if the house is theirs in a Texas divorce, the outstanding debt on the house might be theirs as well.

True to form in Texas divorces, this debt would raise more questions! For example, how is debt divided in a Texas divorce? If the other spouse contributed to ongoing mortgage payments of said house, but not the down payment, they might receive a greater share of other marital property.

So again with “In a Texas divorce, who gets the house?” riddle, the best answer is: it depends! Even if you think you know the characterization of your property, these riddle-like problems still crop up, and when they do, it’s best to have a good Houston divorce attorney by your side.

Avoid Splitting Hairs over Splitting Property

To review, though Texas splits its marital property 50/50, things are still not always clear-cut. Even if your divorce is amicable, the process of dividing up property can get heated.

It’s imperative that you hire an attorney who has real courtroom experience and can make sure that what’s yours winds up in your hands. Taly Thiessen combines trial-tested battle strategies to deliver strong representation during your divorce or custody hearing. To start preparing your case, schedule your consultation today.

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Mark Thiessen