Texas courts are mandated to divide marital property in a “just and right” manner, but that doesn’t always mean a 50/50 split. Texas courts consider many factors when dividing a marital estate. For example, if one spouse commits adultery, family violence, is a felon, or abandons the marriage, courts may award a larger share of community property to the innocent spouse. It also matters whether the property in questions is characterized as community or separate, because Texas courts cannot divide separate property in a divorce, although the parties may agree to give the spouse without separate property a larger share of community funds.
Separate and Community Property. Property is characterized as separate if it was owned or earned prior to marriage, acquired by gift or inheritance during marriage, was compensation for a personal injury, or the result of a capital gain on separate property. In Texas, all property owned at the time of divorce is presumed to be community unless a spouse can prove it’s separate by clear and convincing evidence. Community property includes income earned during marriage, property bought by community funds during marriage, all income and dividends earned during marriage, and income earned on separate property during marriage.
Characterizing Property. The character of property is determined at the time title is acquired. However, couples can agree to transform community funds into separate property by signing a post nuptial agreement.
Factors Affecting Property Division in Texas. There are several factors that influence how a Texas court divides a community estate. Chief among them are unequal earning capacity, size of a separate estate, fault, length of the marriage, custody of children, fraud, health and age of the spouses, education and abilities of the spouses, and need for support after the divorce.
Unequal Earning Capacity. If one spouse earns $350,000 annually while the other is a housewife with no employment experience, she will almost always receive a larger share of the community estate based on this factor alone.
Size of a Separate Estate. If one spouse inherited a large separate estate while the other spouse owns no separate property, the person without a separate estate may receive a larger share of community funds.
Fault in the Marriage. Courts may award a larger share of the marital estate to an innocent spouse who is the victim of adultery, abuse, or abandonment. Some courts give fault a smaller weight in their evaluation of the case compared to earning capacity, age, health and length of marriage.
Length of Marriage. Judges often award a larger share of the community estate to a spouse who has been caring for children rather than working full time if the marriage was a long one.
Custody of Minor Children. Courts consider the welfare of children when dividing property, so the spouse who receives custody of minor children is often awarded a larger share of the community estate because child support doesn’t necessarily cover all the expenses of rearing children.
Fraud or Waste of Community Funds. Courts may punish a spouse who has wasted community assets by spending them on a girl friend or committed fraud by hiding assets. The innocent spouse may be awarded a larger share of the marital estate as compensation.
Health and Age of Spouses. If one spouse is disabled or significantly older, the courts may award him or her a larger share of the community estate because he or she can’t earn a living.
Education and Abilities of Spouses. A spouse who does not have an advanced professional degree or special abilities may be awarded a larger share of the community estate to compensate for the difference in earning capacity.
Need for Future Support. If the marriage lasted less than ten years so there is no right to spousal support under Texas law, courts may award a larger share of the marital estate to the spouse who needs funds to attend college or vocational training so she can gain the skills needed to earn a living.
Courts consider many factors in awarding a larger share of the marital property to one spouse. The more important factors are unequal earning capacity, fraud, health, age, and need for future support. Courts balance these factors when making an unequal award.
Couples are more likely to reach a satisfactory division of their marital estate if they opt for a collaborative divorce because they are in the best position to know their future needs, they can take into consideration the welfare of their children, and the collaborative process helps both spouses be more reasonable and generous when negotiating a settlement of the marital estate.