Other than custody of minor children, possession of, or the ability to continue living in the marital home, is often the most contested issue. Many times, a home represents the single largest investment a person makes over the course of life. The equity accrued in a home may also contain a significant amount of the assets your family acquired during your marriage. It's not unusual for there to also be major emotional value to the home, in the form of memories.
No matter how you feel about your house, to the courts a home is just another asset. Asset division is often a complex issue. The more assets you and your spouse have, the more difficult and contentious the process could become. If both of you hope to retain or live in the family home during or after the divorce, you may wonder how the courts make decisions about who owns the home.
Texas considers most primary homes community property
Unless one spouse purchased the home or inherited it from someone before the marriage, the house is likely community property. Community property belongs to both spouses, regardless of who made more money. That means that your equity in the home is subject to division.
The courts can handle assigning the home's equity in a number of ways. If one spouse retains the home, the courts could order him or her to refinance the home and cash out a certain amount of equity for the other spouse. In cases with low equity or other extenuating factors, the courts may simply order that the home get sold and the proceeds split between spouses. Sometimes, one spouse's share of equity could get awarded in the form of comparable other assets, such as a retirement account.
Other factors can also influence what happens with a home
If you have children and your spouse requests both custody and the family home, the courts could consider that during the asset division process. Particularly in cases where only one spouse wants custody, children can impact how the courts decide to handle a home. The best interests of the children usually include enduring as little disruption as possible and maintaining healthy relationships with both parents.
Provided that there is sufficient equity and the custodial spouse has the ability to maintain the home and pay the mortgage, the courts could decide to award the home to the custodial spouse for the sake of the children.
It is nearly impossible to determine how the courts will rule on your home's ownership and possession, given that there are so many variables that impact the decision. Talking with your spouse about it through lawyers or mediation could allow you to come to a mutual agreement. Otherwise, the decision will be in the hands of the court.