Who Gets the House in a Texas Divorce?

by Dave Budny

There is no automatic winner. Texas presumes a house bought during the marriage is community property, and a judge divides community property in a way the court considers "just and right," which is not always a 50/50 split. A house one spouse owned before the marriage, or inherited, usually stays that spouse's separate property.

That's the short answer. The real answer depends on when and how the house was bought, how it was paid for, and whether the two of you can agree. Here's how it works in Texas, and what your realistic options look like if you own a home in Waxahachie or anywhere in Ellis County.

Is the house community property or separate property?

Texas is a community property state. Under Texas Family Code 3.002, community property is everything other than separate property that either spouse acquired during the marriage. Under Family Code 3.001, separate property is what a spouse owned before the marriage, plus what a spouse received during the marriage by gift or inheritance.

Family Code 3.003 adds an important rule: property either spouse has during the marriage or at the divorce is presumed to be community property. A spouse who says the house is separate has to prove it by "clear and convincing evidence," which usually means closing papers, deeds, bank records or a paper trail from the money that bought it.

Whose name is on the deed doesn't settle the question. Texas Law Help points out that a home bought during the marriage is presumed community property even if only one spouse is on the title.

How does a Texas judge divide the house?

If you can't agree, Family Code 7.001 tells the judge to divide the community estate in a way the court finds "just and right," with due regard for the rights of each spouse and any children. Texas courts have listed the kinds of things a judge may weigh, including:

A difference in income or earning capacity
Fault in the breakup of the marriage
The size of each spouse's separate estate
Age, health and physical condition
The need for future support

So a judge can award more than half of the community estate to one spouse. What the judge can't do is give one spouse's separate property to the other. Texas Law Help says this plainly, and Texas appeals courts have read "estate of the parties" in 7.001 to mean only the community property.

Most couples never get to a judge's ruling on the house. They agree on a plan in mediation or a settlement, and the decree puts it in writing.

What if community money paid for a separate property house?

This comes up a lot. Say one spouse owned the house before the wedding, and for ten years the mortgage was paid out of both paychecks. The house can stay separate property, but the community may have a claim for reimbursement.

Family Code 3.402 allows a claim when one marital estate gives a benefit to another that would be unjust enrichment if it isn't repaid. That includes paying a debt that should have come from the other estate, and improvements that raised the value of the other spouse's real property. The court can offset the value of the use and enjoyment of the house against the claim, and under 3.406 it can place an equitable lien on the property to secure what is owed.

Texas rewrote 3.402 effective September 1, 2023. Older articles that list specific reimbursement items, like reduction of mortgage principal, are describing the old version. Ask your attorney how the current law applies to your house.

If improvements are part of the argument, real numbers help. Dave's general contracting background means he can help both sides see what a roof, a kitchen or an addition actually adds, instead of guessing.

What are the options for the house?

Option	How it works	What to watch
Sell and split the proceeds	List the house, pay off the loan and costs, divide what is left	Both spouses sign to sell a homestead, and any temporary orders come first
One spouse buys out the other	The spouse keeping it pays the other's share of the equity, or other assets make up the difference	You need a value you both trust
One spouse keeps it and refinances	The keeping spouse takes over the debt in their own name	A court can't force a bank to make a loan, so set a refinance deadline in the decree
The judge decides	If you can't agree, the court may order a sale or award the house to one spouse	You give up control over timing and price

Can we sell the house before the divorce is final?

Often yes, but there are rules. Under Family Code 6.702, a court can't grant a divorce before the 60th day after the suit was filed, with a few exceptions, so most cases run at least two months. Under Family Code 5.001, neither spouse can sell or mortgage the homestead without the other spouse joining, even if the house is one spouse's separate property.

Family Code 6.502 also lets the court issue temporary orders while the case is pending. Those can stop either spouse from selling, transferring or mortgaging property, and can give one spouse exclusive use of the house. Before you list, have your attorneys confirm what orders are in place. Our divorce home sales page walks through how we handle the sale as a neutral agent for both of you.

What happens to the mortgage?

The decree divides the property between the two of you. It doesn't change your contract with the lender. Only a refinance, a payoff or a release from the lender changes who owes the loan, so if one spouse keeps the house, plan for the refinance before the decree is signed.

Texas Law Help notes that if refinancing has to wait, a Deed of Trust to Secure Assumption can protect the spouse who is leaving, and the spouse giving up the house typically signs a special warranty deed that is filed with the county clerk. In Ellis County, that's the Ellis County Clerk in Waxahachie.

How do you put a fair number on the house?

Buyouts and sales both start with a value. A number one spouse found online rarely settles anything. A comparative market analysis built from recent Ellis County sales gives you both the same starting point. For context, the median sale price in Ellis County was $414,990 in October 2026, but your street can be very different from the county median.

If you're leaning toward selling, our seller net sheet shows what you'd likely walk away with after the loan payoff and costs, and what it costs to sell a house in Texas breaks those costs down.

FAQ

Does it matter whose name is on the deed?

Not by itself. A house bought during the marriage is presumed to be community property even if only one spouse is on the title. The spouse claiming it as separate property has to prove it by clear and convincing evidence.

If I move out, do I give up my right to the house?

No. Texas Law Help says moving out doesn't give up your rights to the home, though the court may consider it. A temporary order can also give one spouse exclusive use of the house while the case is pending.

Can the judge give my separate property house to my spouse?

No. A Texas court divides the community estate, and it can't award one spouse's separate property to the other. The community may still have a reimbursement claim if community money paid down the loan or improved the house.

Talk it through before you decide

We're real estate agents, not attorneys, and this isn't legal or tax advice. What we can do is give you both a clear, shared number for the house and a plan for selling or keeping it. Get a free home value estimate or contact Dave to talk through your situation in confidence.