Property Division is not a 50/50 split
Texas courts must divide marital property in a “just and right” manner. However, that doesn’t necessarily mean 50/50 because there are several factors courts may consider in awarding one spouse a larger share of the marital estate. Even though Texas awards “no fault” divorces, if one spouse commits adultery, family violence, a felony or abandons the marriage, courts may consider that “fault” and award a larger share of community property to the innocent spouse. Courts may consider any and all the following factors in deciding to award one spouse a larger share of a marital estate.
1. Unequal Earning Capacity.
If one spouse is a physician who 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.
2. Fault in the Marriage.
Courts may award a larger share of the marital estate to an innocent spouse if she is the victim of adultery, abuse, abandonment or her spouse has been convicted of a felony. However, some courts give fault a smaller weight in their evaluation of the case compared to earning capacity, age, health and length of marriage.
3. Length of Marriage.
Most judges are willing to 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. Judges believe she should be compensated for her non-financial contribution to the family estate.
4. 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.
5. Fraud or Waste of Community Funds.
Courts will punish a spouse who has wasted community assets by spending them on a girl friend. And if a spouse committed fraud by, for example, hiding community assets courts will award the innocent spouse a larger share of the marital estate as compensation. Generally, courts calculate the amount of waste or fraud and award 50% of that amount to the innocent spouse above and beyond her regular entitlement.
6. Size of Separate Estate.
If one spouse inherited a sizable estate from his parents, the courts will take that fact into consideration when dividing marital assets and award the other spouse a larger share of community funds. A larger separate estate may justify a bigger award of community property to the other spouse.
7. Health and Age of Spouses.
If one spouse is disabled or significantly older, the courts generally award him a larger share of the community estate because he can’t continue to earn a living.
8. Education and Abilities of Spouses.
The spouse who does not have an advanced professional degree or special abilities, such as being a professional athlete or singer, may be awarded a larger share of the community estate to compensate her for the difference in earning capacity.
9. Need for Future Support.
If the marriage lasted less than ten years so there is no right to spousal support, courts may award a larger share of the marital estate to the spouse who needs support 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: unequal earning capacity, fault, length of marriage, custody of minor children, fraud, waste, size of a separate estate, health, age, education and need for future support. Generally, the more important factors are unequal earning capacity, fraud, health, age and need for future support. The courts will also balance these factors when making an unequal award. If some factors favor one spouse and some the other, courts will weight the factors in the balance and decide on a “just and right” division of assets. Of course, if several factors favor one spouse, she will usually be awarded a larger share of the marital estate compared with a spouse who has only one or two factors on her side.