Contrary to what many people believe, Texas Family Law does not mandate a 50/50 division of property in a divorce. Under Texas Family Law, the Court is charged with a duty to divide marital property in a manner that is “just and right.”
Appellate Courts have found in some cases that an 80/20 property division was “just and right.” However, depending on the size of the estate, we generally see disproportionate property divisions falling somewhere in the range between 51 percent and 60 percent.
Whether a divorcing spouse is entitled to a disproportionately larger share of the community estate under Texas Family Law depends on the facts of a particular case. Each case is unique and one of the primary factors the Court considers in making a disproportionate property division is disparity in earning capacity. If one party has an earning capacity of $150,000 per year and the other can only earn $30,000 per year, the Court may very well grant a disproportionately larger share of the property to the spouse with the lower earning ability.
The conventional wisdom behind this thinking is that the higher income earning spouse can recover the difference more quickly than the lower earning spouse. There are a total of 23 factors the Court can consider in granting a disproportionate property division. Those factors were specified in the 1981 landmark case of Murff vs. Murff.
These include factors include
- disparity in the ages of the spouses ( a significantly younger spouse has more time to replace assets than the older spouse);
- education of the spouse;
- the relative physical conditions of the spouses;
- the size of separate estates of the spouses;
- education and future employability of the spouses;
- the length of the marriage, and
- attorney fees paid by a spouse in the divorce.
Fault may be considered in property division
Many believe that, since Texas is a “no fault” state, fault can play no part in a Texas Family Law case. The reference to “no fault” means that a spouse does not have to prove a statutory fault ground in order to obtain a divorce in Texas. The only requirement for divorce under Texas Family Law is the belief by one of the spouses that the marriage has such irreconcilable differences, it cannot continue. However, fault in the breakup of the marriage may be a consideration in the division of property. Fault is a legal term of art and typically refers to a statutory fault ground, some of which are as follows:
- Conviction of a felony, and
These are a few of the factors the Court may consider in deciding the division of property in a divorce. It is important to understand that a trial court in a Texas Family Law matter has broad discretion and may see things very differently than any individual party. It is important that you select an experienced Family Law attorney and listen carefully to the nuances of these terms and concepts that the courts will follow.
Sufficient evidence for either 50/50 or disproportionate settlement
On your behalf, your attorney must present sufficient evidence in support of your position in order to convince the Court to either grant or not grant a disproportionate share of the community property. Therefore, if you believe a 50/50 division is most appropriate and your spouse’s attorney argues against it, your attorney will need to present evidence to controvert your spouse’s argument.
Many cases have been decided on these factors and that precedent affects how the Judge in your case will listen to and consider your case. An attorney who is experienced in bringing these cases before Texas Family Law courts can help you make the strongest case for either a disproportionate or a 50/50 property division.