When parties divorce, there are many issues to address. While issues affecting children are clearly to be resolved first, thereafter property concerns require close attention. The primary consideration for most couples is how to deal with the marital residence. Who will get the house? Property division during a divorce is not an easy task.
What to do first
The first consideration is going to be whether either of the parties has the financial ability to pay any mortgage debt encumbering the residence. If not, then it is likely the parties might agree to sell the residence. Alternatively, the court has the discretion to have a receiver appointed to sell the residence with the net proceeds to be divided between the parties on a basis that the court deems appropriate.
If either party is able to pay the mortgage debt, the court might award the residence to the financially able party. The party receiving the residence will then have the obligation to timely pay the mortgage debt. Problems arise if that party defaults in making payment. The result of that could be damage to the credit rating for each party. To prevent this situation from arising, an experienced attorney may negotiate and draft conveyance documents to ensure that if the receiving party defaults, then the remaining party will have the option to pay the mortgage debt and reclaim the residence. If this right is not awarded, then the non-defaulting party may essentially be without recourse.
Does credit affect who gets the house?
The other problem frequently associated with awarding the residence to one party also relates to credit. Generally each party is obligated on the mortgage debt. The fact that the court awards the residence to one party does not change the fact that both parties remain liable on the mortgage debt. The liability for both parties will likely remain until the lender releases either or both of the parties. This too is an issue that requires careful consideration and negotiation prior to the time a decree is entered. The best situation may arise if the receiving party is obligated to refinance the mortgage debt and obtain a release of the other party.
If neither party has the equity to pay the debt
A third situation arises when the amount of equity in the residence is so great that the amount cannot be paid by one party to the other in a single payment. The court may address this matter by requiring the receiving party to pay out over time the amount of equity awarded to the other party. It is important that the proper real estate documents are executed to ensure that the debt and any resulting lien against the residence are both enforceable in the event of a default in payment of the equity interest.
The division of the marital relationship can be difficult. However, since the residence is generally the largest asset of a divorcing couple, it is particularly important to ensure that the asset is properly divided and that the result intended is actually achieved.
To discuss your options, do not hesitate in contacting a qualified property division attorney today at 817-204-9000, or contact us online, and our attorneys will get back to you as soon as possible. The Law Offices of David Kohm have over 25 years experience and proven results. With offices all around the DFW metroplex, including Cedar Hill and Garland. Our dedicated team of attorneys are prepared to represent you and protect your rights. Call our offices 24/7 to set up your free consultation.
Faun Rowland is an attorney that has been practicing in the area of family law for fifteen years. In addition, she has been an adjunct professor of law at Tarrant County College for approximately seven years. Faun is a member of the State Bar of Texas, State Bar of California (inactive), Tarrant County Bar Association, and the Tarrant County Family Law Bar Association.
