Texas Divorce Law...

Texas Law - The Home

In making its division, the court is allowed to consider the need of children for a homestead.

In practice, this consideration can result in the judge's attempting to award the home to the custodial parent.

Or, the court will award to the wife the right to live there, and say that the proceeds will be split (in some percentage) whenever the home is sold.

This allows the children the continuity of attending the same schools, keeping the same friends, and so on.

Texas also has a provision in its Constitution, called the "Homestead Exemption," that generally prevents one spouse from selling the home without the consent of the other spouse. However, courts are permitted to order the home to be sold in a divorce proceeding.

Also, if the court may, in effect, grant one party a mortgage interest on the home to assure that a debt between spouses is paid. In that case, the spouse to whom the debt is owed may force a sale of the home if the other spouse does not pay.

Texas Constitution, Article 16, Section 50.

Cases:

Grossnickle (1996) 935 SW2d 830 (wife was financially responsible for deterioration in home, which was community property, for the period in which she lived there and was responsible for maintaining the home after the divorce but before it was sold. Because of vandalism, mildew, and disrepair, the value of the home had declined from approximately $175,000 to approximately $95,000 in a two year period. Wife had claimed that husband had an obligation to maintain the home, based on the previous marital relationship, but the court found that no such obligation exists.).

First Huntsville Properties Co. v. Laster (1990) 797 SW2d 151 (The court states the conclusion that it may give wife the right to live in the home, even if the home is husband's separate property. In this case, the wife had a 26.17% interest and was granted the right to live in the home until the couple's youngest child reached age 18 or was no longer in school, whichever came first. After that point, the co-owner could force a sale of the home and division of the proceeds).

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