Who gets the house in a Texas Divorce

Divorce is a challenging and emotional process, and one of the most pressing concerns for many couples is determining who gets the marital home. In Texas, the division of property during a divorce is governed by the Texas Family Code. Here, we’ll delve into the specifics of how the Code addresses the division of the marital home and what you can expect if you’re navigating a divorce in the Lone Star State.

Community Property State

First and foremost, it’s essential to understand that Texas is a community property state. This means that most assets acquired during the marriage, including the marital home, are considered community property and belong to both spouses equally. However, this doesn’t necessarily mean the house will be split 50/50.

Parties’ Agreement vs. Court Decision

Before diving into the factors the court considers, it’s crucial to note that the parties involved have the first say. If both spouses can come to an agreement about the division of the marital home based on their circumstances and desires, the court will typically honor this agreement. However, if the parties cannot reach a consensus, the court will step in to make the decision for them.

Factors Considered in Dividing the Marital Home

The Texas Family Code mandates a “just and right” division of community property. This doesn’t always translate to an equal division. Instead, the court will consider various factors, including:

  1. Fault in the Breakup of the Marriage: If one spouse is at fault for the dissolution of the marriage (e.g., due to adultery or cruelty), the court may award the marital home to the other spouse.
  2. Disparity in Earning Power: If one spouse has a significantly higher earning capacity than the other, the court might award the home to the spouse with a lower earning capacity, especially if they have primary custody of the children.
  3. Custody of Children: The court may award the marital home to the spouse who has primary custody of the children to maintain stability in their lives.
  4. Separate Property Contributions: If one spouse used separate property (e.g., an inheritance or gift) to purchase or improve the home, the court might consider this when dividing the property.

Options for Dividing the Marital Home

There are several ways the marital home can be divided:

  1. Sell the Home: The most straightforward option is to sell the home and divide the proceeds. This is often chosen when neither spouse can afford to maintain the home on their own.
  2. One Spouse Buys Out the Other: If one spouse wishes to keep the home, they can buy out the other spouse’s share. This often requires refinancing the mortgage.
  3. Co-Ownership: Some ex-spouses choose to co-own the home, especially if they have minor children. This arrangement requires a lot of cooperation and is less common.
  4. Deferred Sale: The court may order a deferred sale, where the home is not sold immediately. This is often chosen to allow children to continue living in the home until they reach a certain age.


The division of the marital home in a Texas divorce is a complex process influenced by various factors. Whether the parties come to an agreement or rely on the court’s decision, it’s crucial to consult with an experienced attorney who can guide you through the intricacies of the Texas Family Code and advocate for your best interests. At The Blacknall Firm, we’re committed to providing our clients with the expertise and support they need during this challenging time.

To discuss retaining our firm for your divorce or child custody case, please schedule a consultation with us today.