Full question:
If both spouses want to keep the house and there is no children , how is it decided who will get the house.
- Category: Divorce
- Subcategory: Property Settlements
- Date:
- State: Texas
Answer:
Texas is a so-called "equitable distribution" state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.
Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. It will be a matter of subjective determination for the court, based on all the facts and documents involved whether you are entitled to equity in the home. The court may also declare that a constructive trust exists, which is essentially a legal fiction designed to avoid injustice and prevent giving an unfair advantage to one of the parties. This may be based on the contributions made by one partner to the property of the other. Each case is decided on its own facts, taking all circumstances into consideration.
In a divorce case, all the marital property of the couple is dealt with and divided in the final decree according to applicable law. If a couple owns a home at the time the divorce petition is filed, it should be included as part of the property owned. If the couple agree to sell the home during the divorce process, the agreement for division of proceeds may be incorporated in the final divorce decree. The property settlement in the divorce decree governs the division of debts and assets.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
