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C. Eric Schmidt - Attorney at Law


Marilyn Gale Vilyus - Retired Founding Attorney

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        Houston, Texas 77079



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To Sell (the House) or Not to Sell –-That is the Question

By: Marilyn Gale Vilyus

Before we discuss possibly “selling” the house, let’s talk about who will be “living in it!”  A divorce is a two stage process.  The first stage is called the “Temporary Orders” period, even though not every divorce actually includes formal “temporary orders” entered with the Court.

This is the time from the date the Original Petition for Divorce is filed until the date the divorce decree is entered with the Court.  The date of divorce (ie. The date the divorce decree is finalized) begins the second stage – the “post” divorce period.

In the event that the parties do decide to put the house up for sale, one of the parties usually remains in the house while it is on the market.  (Sometimes, both parties continue to live together!!!!!)

Just because the wife, let’s say, will not be able to afford the house after the divorce, that does not mean that the Court will not allow her and/or the children (if the parties have children) to continue to stay in the house while the case is pending.

In fact, this is usually what happens!  Most of the time, the Court orders the husband to move out of the house.  (Note:  there are exceptions.)  This is because the Court will try to maintain the status quo if kid(s) are involved.   Wives who are not mothers are also commonly allowed to stay in the home, unless there are special circumstances which convince the Judge that the wife and/or kids should move out and the husband should stay!

If a wife/mom wants to move out of the house, that is also okay. 

Either way, the Court will make sure that each party has enough money to pay the monthly bills.   If the wife has inadequate income, it makes little difference if the husband pays the mortgage and wife lives in the home or if the wife moves into an apartment and the husband pays her rent.

This is an oversimplification, to be sure.  (Do not panic, gentlemen!)

The point is that everybody has to live somewhere while the divorce is pending.   And, lots of times, the husband ends up paying for both the mortgage on the marital residence where the wife and kids are living and the rent for the apartment in which he is living -- especially if the wife has no income or she only makes minimum wage or works part-time!  Please remember that this is just a short-term, temporary situation!

Temporary support can take varied forms.  For example, the wife may pay the mortgage, but husband may pay her “x” dollars in temporary spousal support to help cover that cost.  (If there are kids living with mom, dad will also pay child support.)  Child support is always handled as a separate, independent issue from spousal support.  However, the amount of child support received will, of course, be considered when determining how much money mom needs in monthly spousal support.

The wife may be required to pay her husband temporary spousal support if she is the party who earns the higher wage and her husband needs help to pay his monthly bills. 

Who will live in the house while the case is pending is a separate issue from who will live in the house after the divorce is final.  While it can be the same party, it doesn’t have to be!

As a part of the final divorce settlement, the parties will decide whether husband or wife will keep the house, or whether it will be sold.

The value of the marital residence is part of the entire property settlement.  There may be retirement and/or other types of property, real and personal.

One party could, for example, trade their community property portion of their spouse’s 401-k for their spouse’s interest in the marital residence.  Or, the parties may trade the value of other property – or even the value of taking on extra debt.

The situations here are too numerous and varied to do justice in this particular article.

In summary, a party should not think that he or she will have to leave the marital residence while the divorce is pending just because he or she cannot afford to live there on their own income.

When considering who will keep the marital residence after the date of divorce, however, the party who keeps the house will need to have enough individual income to pay the monthly mortgage and expenses in order for that kind of property division to make sense. 

Of course, child support, alimony, and other monthly debts and expenses would all have to be considered.

Sometimes, neither party can afford the marital residence after divorce – or maybe neither party wants it!!!!  In this case, the parties can enter into an agreement to list the house for sale while the divorce is pending.  They will come to an agreement about such specific terms as the listing price for the house, what realtor they will use, who will live in the house pending the sale, who will pay what expenses, and how the net proceeds from the sale will be allocated.

If the house has not sold at the time the divorce is finalized, these terms will also be put specifically into the divorce decree as well as an “operating trust agreement” which will be prepared by one of the attorneys, signed by the parties and filed with the county where the property is located.

The divorce decree describes the agreement between the parties.  The operating trust agreement tells “the rest of the world” that there is an agreement in place between the parties regarding how any proceeds from the sale will be divided by the parties.

Your attorney can help you determine what the best course of action is for you!  Please call us at 281.550.6650 for a free attorney divorce consultation.

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