Introduction

For many spouses, the family home represents far more than a physical structure. It carries memories, provides stability for children, and often serves as the biggest financial asset in the marriage. Whether you want to keep it, sell it, or buy out your spouse, you must understand how courts handle real property in divorce — especially in states like Texas with community property rules.

This comprehensive guide explains how courts make decisions, what happens to the mortgage, the risks of trying to “keep the house at all costs,” and the smart steps to protect yourself financially.

1. The Starting Point: Is the House Community Property or Separate Property?

Before a court decides who gets the house, it must determine what part of the home is marital (“community”) property.

A. Community Property

In states like Texas, anything acquired during the marriage is presumed to be community property, including:

• A home bought during the marriage

• A home refinanced using community income

• A home remodeled or improved using community funds

This means both spouses typically have equal ownership, regardless of who is listed on the deed or who paid the mortgage.

B. Separate Property

A home may be considered separate property if:

• One spouse bought it before the marriage

• One spouse received it as a gift

• One spouse inherited it

• The home was purchased with separate-property funds

However, even when the property is separate, the other spouse may have a reimbursement claim, such as:

• Mortgage payments made during the marriage

• Improvements made using community funds

• Increased equity paid down with marital income

This can significantly affect who ultimately gets the house.

C. Tracing and Documentation Matter

If one spouse claims the house is separate property, they must prove it with clear and convincing evidence, often through:

• Deeds

• Loan documents

• Bank records showing separate-property payments

Without proof, the court will treat the home as community property.

2. Who Gets the House? How Courts Decide

Courts have broad discretion in dividing marital property. When analyzing who should receive the home—or whether it should be sold—the judge considers multiple factors.

Below are the major factors affecting the decision.

A. Best Interest of the Children

If the parents share children, the court may award the house to the parent who:

• Has primary custody

• Can provide continuity and stability

• Lives in a school district important for the children

Judges often prioritize keeping children in familiar environments.

B. Financial Ability to Maintain the Home

Courts examine whether either spouse can realistically:

• Pay the mortgage

• Manage taxes and insurance

• Afford ongoing repairs and maintenance

A spouse who cannot financially maintain the property is unlikely to keep it — even if they emotionally want it.

C. Income Disparity and Earning Ability

A spouse with significantly lower income may:

• Need the home for stability

• Receive it as part of an unequal division

• Be awarded temporary exclusive use

However, ability to pay the mortgage still matters.

D. Reimbursement Claims

If one spouse has reimbursement claims, the court may:

• Award the house to them

• Award a larger share of the equity

• Offset the claims with other assets

E. Settlement and Buyout Options

Courts may consider whether one spouse is willing to buy out the other, refinance the mortgage, or offset the house with:

• Retirement funds

• Savings

• Vehicles

• Other marital assets

3. Common Outcomes for the Family Home

Here are the most typical results in divorce cases.

a. One Spouse Keeps the House (and Buys Out the Other)

This is the most common scenario.

To keep the home, the spouse must:

• Refinance the mortgage within a set timeframe (often 60–180 days)

• Pay the other spouse their share of equity

• Remove the other spouse’s name from the loan

Buyouts can be:

• Cash buyouts

• Equity offsets (trading property for the house)

• Assumption of debt

b. The Home Is Sold and Proceeds Are Divided

Courts often order the home sold when:

• Neither spouse can afford it

• Neither spouse wants it

• The equity must be divided fairly

• One spouse refuses to refinance

• Keeping the home would create financial strain

Sales are supervised with strict timelines to prevent delay.

c. Temporary Possession Until Children Graduate

Courts may allow one spouse to remain in the home until the youngest child turns 18 or graduates high school, after which the home is sold and proceeds are divided.

This allows the child to remain in a stable environment but delays the final division.

e. One Spouse Keeps the House as Part of an Unequal Division

If one spouse:

• Gave up career opportunities

• Stayed home with children

• Sacrificed earning ability

• Faces financial hardship

The court may award the home as part of a disproportionate split.

4. What Happens to the Mortgage? (Most People Don’t Know This Part)

This is where many spouses make dangerous assumptions.

A. Divorce Decrees Do NOT Remove Liability

Even if the decree says your ex must pay the mortgage, that:

• Does not remove your name from the loan

• Does not protect your credit

• Does not stop lenders from coming after you

Only refinancing removes liability.

B. You CANNOT Force a Lender to Refinance

The court may order a spouse to refinance, but:

• A lender can still deny the loan

• Missed payments hurt both spouses’ credit

• You remain legally responsible until the loan is transferred

This is why proper timelines and enforcement mechanisms must be included in the decree.

C. If Your Ex Doesn’t Refinance — Your Credit Suffers

Late payments stay on your report for 7 years, even after divorce.

People often underestimate this risk.

5. Why Keeping the House Isn’t Always the Best Financial Choice

Emotionally, people want to keep the home. Financially, it may not make sense.

Common risks include:

A. Becoming “House Poor”

Paying a mortgage you can’t afford leaves no room for:

• Child expenses

• Car repairs

• Emergencies

• Savings

It creates unnecessary stress.

B. Hidden Costs

Owning a home means paying for:

• Repairs

• Taxes

• Insurance

• Maintenance

• Appliances

These quickly add up.

C. Losing Equity If You Refinance at High Rates

In some markets, refinancing reduces net value.

D. Delayed Sale Reduces Profit

Waiting for years to sell may lead to:

• Market downturn

• Higher maintenance costs

• Reduced equity

6. How to Decide Whether Keeping the House Is the Right Choice

Here are smart questions every spouse should ask:

• Can you comfortably afford the mortgage alone?

• Can you refinance in your own name?

• How much equity exists?

• Will keeping the house require giving up valuable retirement assets?

• Is the location important for your children’s schooling?

• Are you keeping the house for emotional reasons or practical ones?

• Would selling now be more profitable?

Run the numbers realistically — not emotionally.

7. How to Protect Yourself in the Divorce Decree

If you want to keep or sell the home, your decree must include:

If You Are Keeping the Home:

• Hard deadlines for refinance

• What happens if refinance is denied

• Who is responsible for repairs

• How equity is calculated

• Removal of ex-spouse from deed

If the Home Will Be Sold:

• Realtor selection process

• Listing price requirements

• Deadline for listing

• Deadlines for lowering the price

• Who pays the mortgage until sale

A detailed decree prevents future conflict.

Dividing the family home is one of the most emotional — and most financially significant — parts of divorce. Whether you want to keep the house, sell it, or negotiate a fair buyout, the key is understanding your legal options and having clear, enforceable terms in your divorce orders.

Have questions after reading this post? Let our legal experts provide clarity and practical advice. Reach out now to discuss your case.