What the Court May Consider When Deciding Who Gets the House

In the event of a divorce, almost all are always concerned about the children and the martial home. It makes sense to those going through divorce that the Courts will determine where the children will live and who they will live with by considering “the best interest of the child.” Now deciding who gets the house can get a bit more complicated including the consideration of the costs associated with keeping the house permanently when the divorce is finally over.  Here we’ll go over some of the factors that the Court may consider when awarding the community property home include (but are not limited to): 

• Which party is living in the home on the date of divorce (especially with the children); 
• Which party is paying for the home’s expenses on the date of divorce (and who has been maintaining the expenses while the divorce was pending);
  • Has the party that has been responsible for such expenses been paying them timely and/or without late penalties? 
• Which party has been responsible for the utilities and the general house maintenance (example: yard maintenance);
• Which party moved out of the home after the divorce was filed;
  • The reason that the party moved out of the home (e.g.voluntarily or by Court Order);
  • When the party moved out of the home;
• Whether or not the party that is requesting to be awarded the home can actually afford the expenses associated with the home (e.g. utilities, mortgage, etc.) and if it applies, whether or not the party would likely be approved by the lien holder and/or mortgage lender for the transfer of the liability to that spouse. 

If a party is awarded the property and the home is in that other party’s name, the parties may be required to execute a deed in order to make a legal transfer of the property (and its responsibilities) to the other party. 

• There are four common types of deeds in Texas:
  • General Warranty Deed – the most inclusive deed of them all. It includes both express and implied warranties. This deed is the top preference for many people because it warrants that the entire chain of title for the property has no issues and even requires the grantor (e.g. the spouse giving up the property) to defend against any defects in the title that come up (even if the defects existed before him or her owned the property themselves). Though this is the preferred deed to many of those receiving property, it is typically not the preferred deed to those giving the property due to the broadness of what the deed promises. 
  • Special Warranty Deed – If you are not comfortable with the inclusiveness of the General Warranty Deed, this could be a great alternative. A Special Warranty Deed is more limited than a General Warranty Deed in that it only warrants that the title to the property is free and clear from other claims during the time period of the grantor’s ownership. This type of deed won’t offer any protection for claims arising prior to the grantor’s ownership of the property. This deed is also the most common instrument used at the end of a divorce.
  • Deed Without Warranty – This deed is just what it sounds like. It is a deed which conveys property but does NOT offer any warranties. This type of deed is typically not advised since the receiving party would be responsible for the costs and any other burden of any claims or issues with the property’s title. However, this deed can be used to clear up past title problems and can still effectively in transferring ownership.
  • Quitclaim Deed – In Texas, a quitclaim deed is special in that it does not actually convey property. Instead, it is essentially a release – one that relinquishes any claim of title to the transferee of the property. 

If you are concerned about your marital home, contact an attorney experienced in high asset and property division.