Texas Divorce With a House — What Happens to Your Home (2026)

For many couples, the house is the biggest asset in the marriage — and figuring out what to do with it is often the most complicated part of a DIY divorce. The good news: it's very manageable if you and your spouse can agree on an approach.

This page covers your options, how to handle the home in your Final Decree, and when you need professional help.

Disclaimer: This is general legal information, not legal advice. Real estate and divorce law intersect in complex ways. If your home situation is complicated, consulting a licensed Texas family law attorney or real estate attorney is strongly recommended.

Is Your Home Community Property?

In Texas, the first question is whether the home is community property or separate property.

Community property (owned jointly, subject to division):

You purchased the home during the marriage using income earned during the marriage
Both spouses are on the mortgage and/or deed
Most marital homes fall into this category

Separate property (generally not divided):

One spouse owned the home before the marriage
The home was inherited by one spouse during the marriage
The home was a gift to one spouse specifically

Important caveat: If a home was owned before marriage but the mortgage was paid down using marital income during the marriage, the non-owning spouse may have a community property claim on the equity built up during the marriage. This is called "community reimbursement" and can get complicated. If this is your situation, an attorney consultation is worth it.

Your Three Main Options

Option 1 — One Spouse Keeps the Home

One spouse stays in the home and takes full ownership. The other spouse walks away from their interest in the property.

How it works:

The keeping spouse refinances the mortgage in their name alone
The leaving spouse signs a Special Warranty Deed (or Deed Without Warranty) transferring their interest to the keeping spouse
Your Final Decree specifies who keeps the home and the timeline for refinancing

What to watch for:

The keeping spouse must qualify for a new mortgage on their own income. If they can't, this option may not be feasible
Until the mortgage is refinanced, both spouses remain legally responsible for the debt even if the decree says only one will pay it. If the keeping spouse stops paying, it damages both credit scores
Set a firm deadline in the decree for refinancing — typically 60–180 days after the divorce is final

The deed transfer: After refinancing, the leaving spouse signs a deed transferring their interest. This deed must be filed with the county appraisal district to update the property records. In Denton County, this is filed with the Denton Central Appraisal District. Filing fees are typically $25–$50.

Option 2 — Sell the Home and Split the Proceeds

Both spouses agree to sell the home and divide the net proceeds (after paying off the mortgage, realtor fees, and closing costs).

How it works:

Your Final Decree specifies the split percentage (often 50/50 but whatever you agree to)
The decree also specifies who is responsible for listing the home, timelines, and what happens if one spouse delays
After the sale closes, proceeds are divided as specified

What to include in your decree:

The split percentage
Who selects the real estate agent (or how you'll agree)
A deadline for listing the home after the divorce is final
A minimum acceptable sale price (or how disputes about pricing will be resolved)
Who stays in the home until it sells and whether they pay "rent" to the other spouse
How mortgage payments, insurance, and taxes are handled until the sale closes

Tax considerations: If you sell your primary residence, you may be able to exclude up to $250,000 of capital gains per person ($500,000 for a couple filing jointly) under IRS rules. Talk to a CPA about your specific situation before finalizing your sale strategy.

Option 3 — Deferred Sale

One spouse remains in the home temporarily — often for school stability for children — before it's eventually sold. The selling timeline is specified in the divorce decree.

Example: Wife stays in the home until the youngest child graduates high school, then the home is sold and proceeds are split 50/50.

This option requires very careful decree language covering:

Who lives in the home and for how long
Who pays the mortgage, insurance, taxes, and maintenance
Whether the occupying spouse pays "occupancy fees" to compensate the non-occupying spouse for use of their equity share
What happens if the occupying spouse wants to sell early
What happens if the occupying spouse can't make payments
How the sale proceeds are split when the time comes

Deferred sale agreements can work well but they keep two divorced people financially tied together for years. Make sure your decree covers every scenario clearly.

How to Handle the Home in Your Final Decree

Your Final Decree of Divorce must specifically address the home. Vague language causes problems. Here's what to include:

Property description: Use the full legal description of the property as it appears on the deed — not just the street address. You can find this on your deed or through your county appraisal district's website (free).

For Option 1 (one spouse keeps): "The marital residence located at [full legal description] is awarded to [Spouse A], subject to any encumbrances. [Spouse B] is divested of all right, title, and interest in the property. [Spouse A] shall refinance the mortgage currently held in both parties' names within [90/120/180] days of the date this decree is signed. [Spouse B] shall execute a Special Warranty Deed transferring their interest to [Spouse A] within [30] days of [Spouse A]'s written request."

For Option 2 (sell and split): "The marital residence located at [full legal description] shall be listed for sale within [60] days of the date this decree is signed. Net proceeds after payment of the mortgage, realtor commissions, and customary closing costs shall be divided [50/50 or other percentage] between the parties. [Spouse A / Both parties jointly] shall select a licensed real estate agent..."

What If You're Underwater on the Mortgage?

If you owe more than the home is worth, your options are more limited:

Continue paying together until the market improves (requires ongoing cooperation)
Short sale — sell for less than owed with lender approval; the lender may forgive the difference or pursue a deficiency judgment
Deed in lieu of foreclosure — transfer the home to the lender
Foreclosure — last resort, damages both credit scores significantly

Underwater mortgage situations almost always benefit from at least a consultation with a real estate attorney or HUD-approved housing counselor.

What If You Can't Agree on the House?

If you and your spouse can't agree on what to do with the home, your divorce becomes contested on this issue. Options:

Mediation — A neutral mediator helps you reach an agreement. Typically $150–$300/hour, often resolved in one session. Much cheaper than litigation.

Partition suit — If you genuinely cannot agree and one spouse won't cooperate with a sale, either spouse can file a separate partition lawsuit asking the court to force a sale. This is expensive, slow, and should be a last resort.

The Special Warranty Deed — What It Is and How to Get It

When one spouse transfers their interest in the home to the other, they sign a Special Warranty Deed. This is a legal document that transfers property ownership.

You have two options for getting this drafted:

Hire a real estate attorney — $200–$500, ensures it's done correctly
Use an online legal document service — LegalZoom and similar services offer deed drafting for $100–$200

The deed must be:

Signed in front of a notary
Filed with your county clerk's office (not the appraisal district — the county clerk handles recording)
Recording fee is typically $25–$50

Do not skip this step. If the deed is never transferred, both spouses remain on the title even after the divorce is final.

Frequently Asked Questions

Can I stay in the house during the divorce? Yes. Unless a court orders otherwise, both spouses have the right to remain in the marital home during the divorce process. If the situation is unsafe, you can request a Temporary Restraining Order or Protective Order requiring one spouse to leave.

What if my spouse is on the deed but not the mortgage? The deed and the mortgage are separate. Being on the deed means ownership. Being on the mortgage means debt obligation. Your decree needs to address both — who owns it and who is responsible for the loan.

Do I need a QDRO for the house? No. QDROs (Qualified Domestic Relations Orders) are for retirement accounts only. Real estate is transferred via deed.

What if the house is in my spouse's name only? If the home was purchased during the marriage using marital funds, it is still likely community property regardless of whose name is on the deed. Texas community property law does not require both names on the deed for joint ownership to apply.

We have a VA loan — can we just assume it? VA loan assumptions are possible but require lender approval and the assuming spouse must meet the VA's eligibility requirements. Contact your lender early in the process if a VA loan is involved.

What about property taxes? Texas property taxes are assessed annually. Your decree should specify who is responsible for property taxes up to the date of transfer and who handles them going forward. If you have an escrow account, the mortgage servicer handles taxes — confirm how this is handled when refinancing.

Last reviewed: March 2026 | Real estate and divorce law are complex. Verify requirements with your county clerk and consider a professional consultation for complicated property situations.