A divorce can be an emotional experience, and there are a lot of steps in the process, one of which is dividing up property. If you’re ending your marriage, you’re likely wondering, “who gets the house?” The answer varies from one situation to another, and you should have a property division lawyer assess your rights. 

What happens to the house during your divorce proceedings?

Very few divorces are a quick process, with many taking a year or longer. While everything is being figured out, what happens to certain assets, like your home? Generally, both parties have a right to live in the house while the divorce process is occurring, but there are exceptions to that general rule.


If you wish to exclude your spouse from the home during the divorce proceedings, a lawyer can help you file a temporary injunction. A temporary injunction is a court order that forces or prohibits one party to take a certain action. In this case, you can force your spouse to leave the house. A judge may grant a temporary injunction for many reasons including:


  1. If there is a protective order in place; or
  2. If a spouse’s actions diminish the house’s property value.


When the divorce is final, who gets the house?

The true answer to this is: it depends. One of the biggest factors in Texas that affects who will get the house at the resolution of the divorce is whether or not the house is community property or separate property. This is the first step of property division determinations in Texas.


Community Property vs. Separate Property

Community property is any property that you or your spouse acquired during the marriage. If you and your spouse purchased the house during the marriage, regardless of how the house is titled, it will likely be considered community property.


Separate property is a property that you either acquired prior to the marriage or were gifted or inherited during the marriage.


How do you show that your house is separate property?

Texas has a presumption of community property, which means that at the beginning of the divorce process, all property will be presumed to be owned by you and your spouse jointly. To recategorize property as separate property, you’ll need to have evidence to show why that property is separate. An experienced Sugar Land divorce attorney can help you appropriately categorize and protect your property.


If your house is community property, who gets it?

In a technical sense, both parties should receive a share since community property is generally divided equitably between the spouses. However, it’s usually not feasible for the divorced parties to share the house, which means one person might get the house and the other will get different assets of equal value.


When deciding how community property is distributed among the parties, judges consider a variety of factors:


  1. Children of the marriage and child custody arrangements;
  2. Income of each party;
  3. Each party’s age and physical condition;
  4. Each party’s financial condition; and
  5. Each party’s financial position.


Contact a Sugar Land Property Division Lawyer Today

It’s important to hire an experienced attorney who can help you protect your property throughout your divorce proceedings. Contact Jamie Jordan, PLLC, today for a free consultation.