Can I Be Forced to Sell My House If I Get Divorced?
Retaining homeownership is a big concern to many divorcing couples. The answer to the question of whether you could be forced to sell your home during a divorce is – MAYBE. It depends on the circumstances. Let’s take a look at this question in more detail.
Who Owns the Family Home: Marital Property or Separate Property
Texas is a community property state. Any property a couple purchases during their marriage is owned equally by both spouses. So, if you and your spouse bought your home together at any time during your marriage, even if only one spouse’s name is on the deed, it is jointly owned community property.
If you owned your home before you were married, it is your separate property UNLESS your spouse has established an interest in it. This could happen if:
- Your spouse was paying the mortgage
- Your spouse paid for a significant repair, home improvement, or remodel.
If the non-owner spouse put a significant amount of money toward the home, they may have a “community reimbursement” claim. During the divorce, they can ask for the homeowner spouse to pay the value of their past investment. If the property gained in value, that, too, can factor into the amount requested.
This is a complicated equation. Your Fort Worth divorce attorney will be able to explain how this might apply in your case and the value of your interest in the home.
Who Gets to Live in the Family Home After a Divorce?
A family home can be divided in a few ways:
- One spouse can keep the home and pay the other spouse a fair market value for their half of the property. They could pay cash, or take out a loan in order to make the payment. They could pay at the time the divorce is finalized, or they may be given a certain amount of time to refinance or pay off the mortgage. During this interim period, it will need to be decided who pays the mortgage, taxes, etc.
The spouse who is bought out then files a quitclaim deed and is no longer financially responsible for the property. If the home-owning party fails to make the mortgage payment, the mortgage company can’t come after the spouse who is no longer the owner.
- The couple could decide that one parent will live in the home with the children until the children turn 18. Then the home will be sold and the money distributed evenly. Usually, the spouse who stays in the home makes the house payments, pays the taxes, etc., but not always. The parties can negotiate this.
- In rare circumstances, the spouses decide that the home is the children’s home. The children live there all the time and the parents live there during their parenting time, and elsewhere the rest of the time. Once the children reach an agreed-upon age, it may then be sold.
What Could Force the Sale of a Home?
One party could get a court order that forces the sale of the home:
- If neither party can afford to buy the other one out, one spouse could ask the judge to force a sale.
- If the family court judge approves a “community reimbursement” claim by the non-owner spouse and the homeowner can’t get a loan to pay it. They could be forced to sell, even though it is their separate property.
Negotiating Creative Solutions
No one likes to be forced into taking an action. Sometimes the forced sale of a home is unavoidable given the circumstances, but sometimes it’s the result of anger or shortsightedness, or not understanding one’s options.
When you work with an experienced divorce lawyer, they have the benefit of seeing how hundreds of couples have managed this challenge in the past. They bring those insights – as well as their considerable negotiating skills – to the table to help you find a creative resolution.