For most couples going through a divorce in Texas, the family home is the single largest asset at stake. It’s also the most emotionally charged. And the decisions made about the home — who stays, who leaves, whether it’s sold — will have financial consequences that last for years.
Here’s how Texas law actually handles the family home in a divorce.
Community Property vs. Separate Property
Texas is a community property state. That means most assets acquired during the marriage — including the home, if it was purchased after the wedding — are presumed to be community property owned equally by both spouses.
However, if one spouse owned the home before the marriage, or received it as a gift or inheritance during the marriage, it may be classified as that spouse’s separate property. Separate property is not subject to division in divorce.
The distinction matters enormously. If the home is community property, both spouses have an ownership interest and the court has authority to divide it. If it’s separate property, the owner-spouse keeps it — though the court may still address reimbursement issues if community funds were used to pay the mortgage or make improvements.
The “Just and Right” Division Standard
Texas does not require a 50/50 split of community property. The Texas Family Code requires a “just and right” division — meaning the court has discretion to divide the marital estate in a way it considers fair given the circumstances of the case.
Factors the court may consider include:
- Each spouse’s earning capacity and future financial needs
- The ages and health of each spouse
- Who has primary custody of the children
- Fault in the breakup of the marriage (adultery, cruelty) — yes, this can affect property division in Texas
- The size and nature of each spouse’s separate estate
- Waste or dissipation of marital assets by either party
The Three Most Common Outcomes for the Home
1. One Spouse Buys Out the Other
One spouse keeps the home and refinances the mortgage to remove the other spouse’s name. The spouse keeping the home typically pays the other their share of the equity. This requires the keeping spouse to qualify for a new loan on their own — which isn’t always possible.
2. The Home Is Sold and Proceeds Are Divided
The home is listed, sold, and the net proceeds (after paying off the mortgage and selling costs) are divided between the spouses according to the court’s order. This is the cleanest outcome financially but requires both spouses to agree to the sale or the court to order it.
3. Deferred Sale
In cases where children are involved, courts sometimes order a deferred sale — allowing the custodial parent and children to remain in the home until a triggering event (the youngest child turns 18, the custodial parent remarries, etc.), at which point the home is sold and proceeds divided. This is less common but does happen.
Temporary Orders and Who Stays During the Case
One of the first issues in a contested divorce is who gets to stay in the house while the case is pending. This is addressed at the temporary orders hearing. The court will typically award one spouse the exclusive right to occupy the home during the divorce proceedings — meaning the other spouse must leave, even if they’re on the deed and mortgage.
This is not a permanent ruling on the home’s fate — it’s just who lives there during the case. But it matters because the status quo created at temporary orders often influences the final outcome.
What If Your Spouse Refuses to Leave?
If your spouse refuses to vacate after a temporary order granting you exclusive use of the home, you can seek enforcement through a motion for contempt. A court order to vacate is enforceable — refusal to comply is contempt of court.
The Mortgage Still Has to Be Paid
Whatever happens in the divorce, the mortgage lender doesn’t care about your court order. If both names are on the mortgage and payments stop, both credit scores suffer. Make sure your temporary orders — and ultimately your final decree — address who is responsible for mortgage payments and what happens if they don’t pay.
Get the Property Division Right
Property division is one of the most technically complex parts of a Texas divorce, and the decisions made here are largely permanent. This is one of the areas where I spend the most time helping my students build a strategy — making sure you understand what you’re entitled to and what you’re agreeing to before you sign anything.
Call: 830.507.3250 | ben@prosecoachtx.com
— Ben Schooley, Pro Se Coach