Amarillo, TX asked in Divorce and Family Law for Texas

Q: Am I entitled to half of the equity in my house if my name is not on the loan or the deed in a divorce?

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1 Lawyer Answer

A: If your house is community property, the court will include it in the "just and right division" of your marital estate regardless of whose name is on the loan or deed. The phrasing you use "entitled to half of the equity" is not precisely correct. You are "entitled" to a "just and right" division. That does not necessarily mean "half" depending upon the facts of your case.

Normally, a divorce court views the equity in a house as being the functional equivalent of its value. If one spouse is awarded the house, that spouse usually is responsible to pay the mortgage. So the value of that asset is usually the same as the amount of equity in the house. If this were done in your case, you most likely would be obligated to refinance the house because you are not currently on the loan. So it would be more logical to award the house to your spouse rather than to you.

Normally--assuming there are not reasons for a disproportionate division of the marital estate--the other spouse (you) would be awarded assets roughly equal in value to the amount of equity so that the overall division of your marital estate is 50-50. This could be funds in a bank account, investments, or even personal property like furniture, appliances, vehicles, etc. If there aren't enough other assets comparable in value to the equity in a house, the court can--but is not required by law to--award a money judgment to the other spouse equal to half the equity, or some other sum of money if there are assets awarded to that spouse which offset some but not all of the value of the equity, with an owelty lien against the house to secure payment.

More often than not, if the house is by far the most valuable asset in the marital estate, the court will order the house to be sold and then divide the net proceeds of the sale between the spouses as part of its just and right division. The negative side to this is that selling a house incurs costs like a real estate broker's fee, commonly of 6%, and closing costs. That means the net proceeds will be less than the equity, so there be less value to divide between the spouses.

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