Who gets the house in a Texas divorce?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

We’ve all heard the tried and true sayings regarding a home. It’s the most important purchase you will ever make, some will say. It’s an investment in your future, others will opine. Whatever it is that you think about your home the fact is that it is a major investment and it is important. There’s another element that you will need to take into consideration and that is the emotional elements that surround the purchase of and enjoyment of a personal residence.

Your home is where the memories, good and bad, that your family created live and remain. The decision of what will happen to your home as a result of a divorce is not one that can be arrived at without a great deal of contemplation and likely negotiation with your spouse. If you have children then this decision becomes even more important and likely more emotionally driven. That is usually a bad combination for a divorce that requires you to have nerves of steel while maintaining a certain degree of objectivity in your negotiations.

Ultimately your case has its own unique set of facts and circumstances that would be taken into consideration by a judge if you and your spouse cannot agree on what is to happen with your home. As I mentioned a moment ago a lot will depend on whether or not you and your spouse have children. In the event that you do the next step in the equation will be the judge making a determination to see if one of you or your spouse can actually afford the monthly mortgage payment on a single income.

The most important issue regarding your children is likely the most important issue regarding who gets the family home in the event that either you or your spouse can pay themortgage. Whichever parent is awarded the right by the judge to determine the primary residence of your children, that will obviously give that parent a huge leg up in being able to remain in the home. The reason for this is that the judge will want to ensure that your children have some stability and consistency in their lives in the midst of all the change and upheaval as a result of your divorce.

In the event that neither you nor your spouse can afford the mortgage payments it is almost assured that the judge will order the house to be sold and the profits split in some manner between you and your spouse. This equity will likely be community property and if so then the factors that we discussed yesterday in our blog post will be applied here as well to determine what share you receive as a result of the sale of the home and what share your spouse receives.

An alternative to the set up that I laid out for you all is the following: the judge awards the parent with the right to determine the primary residence of your children the home until your children graduate from high school or any other date that he or she believes is fair. After that date the house will be put on the market for sale and the proceeds from the sale split according to a breakdown set forth by the judge. This allows for some stability for your children, while ensuring that both parents share in the benefit of the sale of the home.

Spousal Maintenance examined

Whether you are in a position to expect to receive spousal maintenance in your divorce, or you are worried about the possibility of having to pay spousal maintenance in the divorce you should pay attention to this subject.

Spousal maintenance is money that is paid from one spouse to the other for daily living expenses when the receiving spouse cannot meet the minimal, basic standards for living on their own. This could be because he or she is disabled, has a lack of education or simply has not worked in many years and needs to transition back into the workforce.

I’ve used this example before when discussing how a judge can split up community property in a divorce but I believe it bears repeating in this context as well. Suppose that you are a physician who has been in practice for a few years and earns $250,000 a year. Your spouse has been a homemaker since your marriage began and has only a high school education. On top of these factors she worked part time as a waitress while you were in medical school in order to pay for your schooling and to support the household.

Your paying spousal maintenance to your ex-spouse is not only justified, it will likely be determined, because she will now have to find a full time job to support herself after being out of work for many years, but also because she helped you in your career path by paying for your school with her income. You can look at the spousal maintenance payments as sort of like a payment of “Debt” that you are crediting back to her.

How frequently is spousal maintenance ordered in Texas divorces?

Not all that frequently, from my experience. First of all, judges do not like to award spousal maintenance unless it is necessary in terms of fairness and survival to do so. A second reason why spousal maintenance is not as common nowadays is because both you and your spouse likely work and earn similar wages. More women are graduating from college from men and this has been the case for sometime. So, if you’re a man your wife likely has just as much of an education to her credit as you do- if not more.

Child Custody in Texas divorces

We’ve reached a point where property and money issues have been gone over with a fine tooth comb, or at least a comb that is close to being finely toothed. Now we can jump into subject matter that is truly important for many of you going through a divorce, namely child custody determinations.

The term “Child custody” does not actually appear at all in the Texas family code. Much of what we consider to make up child custody- time with your child, where your child lives primarily, rights and duties to your child- are broken down into conservatorship, possession, access and visitation orders. Custody is a term that lawyers and clients alike utilize with frequency so I will do so in this section. Just know that your divorce decree probably won’t have the word “custody” show up anywhere.

Child custody is comprised up of many rights and duties to your child. Will you or your spouse gain the right to determine the primary residence of your child? How will you and your ex-spouse make decisions regarding educational, medical and psychiatric matters? These are the types of important subjects that will fall under the banner of child custody?

Will the wife in your divorce have an advantage when it comes to custody issues?

This is a concern that fathers raise with me a great deal. If you are a dad you can breathe a little easier knowing that there is not specific advantage within the laws on divorce that provides your wife with a leg up when it comes to your kids. In fact, judges are not supposed to presume or assume that your wife will be a better parent in terms of future prospects of raising your child. If your case makes it to a trial then you both will need to present evidence that will show the judge why you should be the parent who gets to have the kids live with you primarily. It is largely a merit based decision, though fathers often put themselves at a disadvantage in this regard. We will start tomorrow’s blog post by discussing this in greater detail.

Questions about family law and divorce? Contact the Law Office of Bryan Fagan, PLLC

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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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