For many couples, the family home is the most valuable thing they own, and it is often the most emotionally charged asset in a divorce. Whether you have lived in your Hill Country Village home for two years or twenty, knowing how Texas law treats that property can help you make clearer decisions during one of the most difficult times of your life.
So who actually gets the house in a Texas divorce? The answer depends on several factors, including how the home was purchased, when it was purchased, and what both spouses decide or a court determines is fair.
Is the House Community Property or Separate Property?
In Texas, property acquired during marriage is generally presumed to be community property, meaning it belongs to the marital estate and is subject to division in a divorce.
Texas follows the community property system, which is governed by the Texas Family Code. Under Texas Family Code Section 3.002, community property includes all property other than separate property acquired by either spouse during the marriage. If the home was purchased during the marriage, it is generally presumed to be community property unless a spouse can prove it is separate property.
Separate property is different. Under Texas Family Code Section 3.001, separate property includes property owned before the marriage or received as a gift or inheritance during the marriage. If one spouse owned the home outright before the wedding, it may remain that spouse’s separate property, but proving that claim requires clear and convincing evidence. Fortunately, that is usually available in the Deed records. Where it becomes difficult is when separate property funds are used for the downpayment. If you can prove with documents that although the home was purchased during the marriage, the money for the downpayment was separate property, then you may be reimbursed for that separate property before the remainder of the equity is divided.
Things get more complicated when community funds are used to benefit a spouse’s separate property, such as paying down the mortgage or making certain improvements to a separately owned home. In those situations, the community estate may have a claim for reimbursement, depending on the circumstances. However, you cannot request reimbursement for mortgage payments if you had the benefit of living in the house.
How Does a Texas Court Divide the Home?
Texas courts divide community property in a “just and right” manner, which does not always mean a 50/50 split.
Texas Family Code Section 7.001 gives courts the authority to divide marital property in a way that is just and right, taking into account the rights of each party. That standard gives judges meaningful discretion. A court can award a larger share of the marital estate to one spouse based on several factors, such as:
- Disparity in earning capacity between the spouses
- Fault in the breakup of the marriage
- Each spouse’s physical and financial condition
- The best interests of any children in the home
- Each spouse’s future financial needs
If children are involved, a court may award the home to the parent who has the exclusive right to designate the child’s primary residence if doing so supports a just and right division of the marital estate.
What Are the Options for the Family Home?
Divorcing spouses generally have three main options for the family home: one spouse buys out the other, they sell and split the proceeds, or they defer the sale.
Courts and spouses typically resolve the family home in one of three ways:
Buyout: One spouse refinances the mortgage in their name alone and pays the other spouse for their share of the equity. This requires qualifying for a new loan independently, which is not always straightforward.
Sale and split: Both spouses agree to sell the home and divide the net proceeds according to the court’s division order. This is a clean resolution, though it means neither spouse keeps the property.
Deferred sale: In some cases, particularly when minor children are involved, the spouses agree to postpone selling the home until a specific event occurs, such as the youngest child graduating from high school. Courts may also approve arrangements that delay a sale when appropriate under the circumstances. This arrangement requires careful drafting to protect both spouses’ interests. The community does not continue to accumulate equity after the divorce, so the equity at the time of divorce must be proven, the house is awarded to one party and the other has a lien, or a right to foreclose, if the house is not sold later as agreed.
Can Spouses Agree on Their Own?
Yes. Texas courts encourage spouses to reach a property settlement agreement on their own, and most divorces are resolved without a judge making the final call.
If both spouses can agree on what happens to the home and how much the home is worth, they can present that agreement to the court for approval. This is called a marital settlement agreement or a mediated settlement agreement. A properly executed mediated settlement agreement that satisfies the requirements of the Texas Family Code is generally binding and irrevocable.
Working through mediation before trial can save time, reduce legal costs, and give both spouses more control over the outcome than leaving the decision entirely in a judge’s hands.
What If There Is a Mortgage?
Divorce does not automatically remove either spouse’s name from a mortgage. In most cases, the spouse keeping the home must refinance the loan, or the lender must otherwise agree to release the other spouse from liability.
This is a point that catches many people off guard. Even if the divorce decree awards the home to one spouse, the other spouse remains legally responsible to the lender unless the mortgage is refinanced or the lender agrees to a release. If the awarded spouse later misses payments, it can damage both parties’ credit. Also, the spouse who is not awarded the home may find it difficult to qualify for another mortgage as long as the credit report shows they are still obligated on the prior loan.
Any divorce agreement involving a mortgaged home should clearly address who pays the mortgage during the pendency of the divorce, who refinances and by what deadline, and what happens if that refinance is not completed.
Protecting Your Interests in a Hill Country Village Divorce
If your home is your largest asset, this is not a process you want to navigate without qualified legal guidance. Texas property division law has real nuances, and the details of your specific situation, including how the home was acquired, what equity exists, and whether children are involved, matter enormously.
At South TX Family Law, we represent clients in Hill Country Village and across the San Antonio and South Texas area in divorce cases involving complex property division. Our team understands how Texas courts approach real estate disputes and works to help each client pursue a fair outcome. Call us at 210-775-0353 or contact us to speak with our team about your situation.
Last updated: June 2027
