Can I stay in the house until my daughter turns 18 years old?

UPDATED: Sep 30, 2022

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Can I stay in the house until my daughter turns 18 years old?

My husband doesn’t work because he uses narcotics all day and he can’t get up to go to work. He has been in jail a couple of times because of it. I am a teacher and pay all bills by myself. I asked him for divorce because he uses pills all time in front of my young girls. When he is sober he plays a game for over 10 hours. We live in a house he inherited from his dad. He told me that I have to leave with my girls because it’s his house. I have paid for bills, AC and a plumber. I have debt for credit cards that we used to make repairs in the house. I can’t afford to pay rent right now. He told me he won’t pay child support because he doesn’t have a job. Should I leave with my girls? He made us move from a house were we paid an affordable amount for rent. My girl loves this community and her schools. They are very affected. Do I need to pack? All the furniture is in my name because I paid everything myself. He wants to keep everything like the stove, dishwasher, fridge, etc.

Asked on May 26, 2016 under Family Law, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

You need to get an attorney.  If you cannot afford one, start making an application to the local legal aid, bar association clinics, or any other program that offers free legal assistance in your community.  Court clerks and local churches usually keep a list of resources.
The house may or may not be his separate property.  I have had several clients come in, say 'it's his house, I know I'm out of luck.' However, after doing a basic title search, we learn that the house was actually deeded or gifted to the husband and the wife as a married couple... which would make the house one-half yours and one-half his.  So... visit with an attorney, have them do a title search, and double check this component.  You can also go to the county clerk's office and have them assist you with a title search on the property.
If the title is deeded to both you, it will be easier for you to be granted exclusive use of the house... at least until the kids turn 18... which would be some valuable breathing time for you.
If the title is not deeded to both of you-- only to him--- then it's a bit more challenging... but not impossibe.  When it comes to family law, everything really is open for negotiation.  It's a given that he will be ordered to pay child support, but I have negotiated in similar situations wherein the wife gets to use a house for a certain period of time in exchange for no child support from dad as long as mom is occupying the house.  So.... win, win--- he doesn't rack up a child support bill that he will never be able to pay and could get thrown in jail for failing to pay... or he can help you out with housing.
Even if he refuses this option, his house can help you down the road.  When a parent owns a home outright, then the Texas AG can place lien on the property for unpaid child support. So.. in the event that you are awarded child support and he fails to pay, you still have a remedy to insure collection.
As for property... if you do decide to leave, take first what is important.  I have had several client's leave a marital residence, leave behind a sentimental something, only to comes back to find it destroyed or lost.  If you cannot replace it, take it with you.
As for the division of property... the courts in Texas use a 'fair and equitable' standard.  This doesn't mean just 50/50 of property... if means a property division package which is fair.  If you are taking $5000.00 in extra debt, the court can award you an extra $5000.00 in property to help secure the debt.  Basically, you could ask for a higher property division because of the debt factor.
I can't emphasize enough that you need to get an attorney.  This feels impossible, but it's not an impossible situation.  A good attorney can help you work through this process and get you a better deal. Many family law attorneys also keep a list of resources handy that they refer their clients to to help with the transition outside of legal services... like help with rent, help with groceries, help with the light bill.... ect. 
You need an attorney for a couple of different reasons.  First, these are legal issues which are not easily handled on your own.  Second, you don't want to accidentally waive your interest in any share of property that you could really use for your children.  Third... you have a bad situation with him using drugs in front of your children.  If CPS finds out, they could require you to participate in services (which are never fun), because you have allowed his conduct to go unchecked.  Some CPS workers will help you... but many CPS workers have over inflated egos that are extremely judgmental of people going through tough financial times.  A good attorney can help you avoid any bad run ins with CPS.
On a slightly different note, remember that four walls don't make the home.  The heart and love you obviously give your children is what makes a real home.  You could use his house, but you don't need it because your heart is already in the right place.  You just need help working through the process.  It's out there... use all the resources... and the rest will work itself out. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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