Who Gets the House in a Divorce Situation?

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Even though the information on this web page is provided by a qualified industry expert, it should not be considered as legal, tax, financial or investment advice. Since every individual’s situation is unique, a qualified professional should be consulted before making financial decisions.


Who Gets to Keep the House During a Divorce?

When one faces divorce, who gets the property and what to do with it become major questions. Fortunately, we’ve got the answers to your concerns.

Divorce is one of the most stressful events one may face in their lifetime. In fact, about 40% of Americans will deal with divorce at some point.

For an event that is already a major stress, why add more stress into the mix? Unfortunately, that usually comes when deciding on selling or keeping the property.

The property you share with your ex-spouse. Knowing what to do in this scenario becomes nerve wracking, but don’t worry just yet.


During a Divorce, Who Gets the House?

A shared property, or community property, can be defined as a property that was acquired by two individuals during their marriage.

When divorcing, the fate of the shared property seems confusing, but the process is fairly simple.

It’s important to first note that the name on the deed does not matter.

Even the spouse without the property in their name may have a shot of owning part of the property through divorce, that is, if the property was bought during marriage. Other restrictions may apply.

In the state of Texas, courts will typically accept the property division that each party agrees upon.

If both can make an agreement, they will fill out a Final Decree of Divorce form for approval.

If approved, both parties will legally have their personal belongings awarded to them.

It is suggested to list pricey ownerships such as vehicles, jewelry, businesses, finances, real estate, and other similar items on the Final Decree of Divorce form.

Belongings may still be considered community property (shared property).

Again, if the division of assets can not be decided upon, the judge will take charge of the final decision and decide what is yours, your spouse’s, and yours to share.

If the decision for the divorce property division cannot be agreed upon by the spouses alone, the District Court apart of the Judgment of Divorce will make the final decision.

Many judges decide on a 50-50 division; however, in Texas, the judge will decide on a division that is just and right based on the information provided.

Here come the restrictions to property division. In the case that one spouse declares the home is theirs, and thus to avoid division between the other spouse, they will have to provide strong evidence supporting that the property is their own separate belonging.

For instance, if one spouse owned the property before the marriage, and both spouses lived under the same roof, the spouse who owned it prior to the marriage would legally get to keep the property.

If one spouse received the home as a gift or as inheritance, they would get to keep the property in that scenario as well if that gift or inheritance was given towards them only.

Stock dividends, capital gains, and/or money received for one spouse for personal injuries are other reasons why one spouse may “win” over the property in court during divorce.

Several other reasons, from fault in marriage to lack of physical health, may change the property division or extinguish such.


How to Calculate a House Buyout During Divorce?

If one spouse legally claims the property after divorce, the future is clear.

However, when it comes to a shared property, it may be more difficult to imagine what the next steps will be.

Do you live in it? Do you sell it? Does your spouse get to sell it? If so, who gets the money? What happens next?

To answer these questions in short, a shared property will usually be sold will each of the parties receiving a portion of the value.

Say, however, you want to raise your children in their family home or keep the home, although legally it is yours and your ex spouse’s.

In a case such as this, a house buyout would be the next option.

A buyout is a settlement where the parent in custody of any children involved will “buyout” the parent without custody in order to raise their children in that home.

Otherwise, the shared property may be sold (as mentioned) or continued to be co-owned.


6 Steps for Calculating a House Buyout During Divorce

1 Contact Your Lender

Ask your lender for a residential loan application. In the case that you don’t want to sell the home, your next step would be to refinance the home and assume mortgage.


2 Ask Your Lender for an Appraisal Report

The appraisal report will cost money; however, half of the appraisal fees from your soon-to-be ex spouse may be recovered.


3 Review the Appraisal Report

After completion of your application to refinance your home, you’ll now know what your home is worth.

Your home value may depend on the value of homes in your neighborhood and be based on local marketing conditions.

You may also find the average value of your home by taking a look at your local tax assessments for the year. To refinance your home, you will need the official appraisal, though.


4 Take a Look at Your Most Recent Mortgage Statement

Your most recent mortgage statement will have a “payoff” of “unpaid loan” box. Make note of what this number is.


5 Subtract Your Mortgage Payoff from Your Appraisal Value

Subtracting this will give the total equity of your home.

However, from this number, you will have to divide your home’s value among your spouse.

You may offer 50 percent or another offer of whatever you find appropriate.


6 Ask Your Attorney to Make Your Spouse a Buyout Offer

To make an official buyout, have your attorney make a buyout offer directly to your spouse or to your spouse attorney for approval.

To further understand the buyout process, here’s an example: If your home is worth $200,000, and your current payoff amount is $120,000, subtracting these two numbers will give you your equity, which would be $80,000.

Cutting your equity in half (for your spouse) would give them $40,000. With that being said, you would need to refinance your home at $160,000 to ensure you have the $40,000 to offer your spouse.



Divorce can be a stressful event. However, it is a must to deal with the divorce property settlement at hand.

In the case that a property is shared by the court’s ruling, the home can be sold for a share of the value, it can be co-owned, or a buyout can ensure the spouse in custody of the children can buyout the spouse from the home to raise the kids there.

Either the option, finalizing the divorce will bring great relief in the end.

Written by Brian Robbins

With over 20+ years of experience in real estate investment and renovation, Brian Robbins brings extensive knowledge and innovative solutions to the HouseCashin team. Over the years Brian has been involved in over 300 transactions of income producing properties across the US. Along with his passion for real estate, Brian brings with him a deep understanding of real estate risks and financing.