gingerbreadhouseA lot of times the question comes up of “who gets the house”. Because the home is often the largest single asset in a divorce, it is important to know what courts consider in making this decision. First, courts consider the ability of the parties to continue making the mortgage payments, taxes, insurance, and other upkeep expenses. Although debt is a consideration in making the just and right division, courts do not want to impose any liabilities on a party that in all likelihood cannot be met. If the spouse lacks income to pay for the home, then that spouse will not likely be awarded the home. If a spouse is going to have to move, I always recommend that it happen sooner than later so the spouse and children, if any, get settled in to the new situation.  Another factor involves whether or not there are children involved. If there are children involved, courts try hard to keep their environment as stable as possible. In that regard, courts consider which of the parties has primary possession of the children and frequently award the house to that spouse.

A lot of people are under the misconception that just because the house is awarded to one spouse the other is no longer liable for the mortgage. Unfortunately, the courts are powerless to change liability on a debt. If spouses have joint debt, such as on a house, the divorce court cannot do anything about that. Sometimes a spouse will agree to try to refinance a joint liability, but there’s little a court can do to force that to happen.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.