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How Does A Judge Divide Property In A Divorce?

  • By: Ryan Hardy of Hardy Law Group, PLLC
  • Published: August 6, 2019
  • Category: Divorce
How Does A Judge Divide Property In A Divorce

You’ve heard the statistics- nearly half of all marriages end in divorce. There are many reasons for ending a marriage including adultery, cruel treatment, a felony conviction, or even abandonment. However, because Texas is a “no-fault” divorce state, fault grounds need not be proven. It is sufficient to simply plead that the marriage has become insupportable, meaning there are irreconcilable differences between the spouses.

Regardless of the reasons for filing for divorce, you may be asking yourself if any of those reasons will affect the way your property is split up when all is said and done.

Will My Divorce Be Affected By Whose “Fault” It Is?

If one spouse is at fault for the breakup of the marriage, the other spouse might benefit from pleading a fault basis for the divorce. While it is not necessary to file in this way, the truth is that it can sometimes be helpful to the so-called “innocent” spouse when it comes time to split property.

For divorce purposes, there are two kinds of property: community property and separate property. As a general presumption, separate property is any property acquired before the marriage, or a gift or anything inherited during marriage. There is a presumption that all property, personal and real, acquired during the marriage is community property and subject to division. The same general rules apply equally to debt, both separate and community.

DivorceA Just And Right Division

So, how does a court split up your property and debts? By deciding what is “just and right.” If you think that’s a subjective standard, that’s because it is. A “just and right” division of property can be interpreted to mean different things, to different people.

In the seminal Supreme Court of Texas case Murff v. Murff, the court outlined the factors used in determining a “just and right” division:

  1. The disparity of incomes or earning capacities of the spouses

One obvious consideration is how much money you make. In Texas, your paycheck (or your spouse’s paycheck) is community property. Retirement accounts are considered community as well. If there is wide disparity in earnings between you and your spouse, you may see the court adjust its award in an effort to make the division fair.

  1. The spouses’ capacities and abilities

A court is able to look at each spouse’s capacities and abilities. A spouse who is unable to work or who is lacking the mental capacity to make a living may receive more of the community property than what they alone have earned.

  1. Benefits that the party not at fault would have derived from a continuation of the marriage

Perhaps the “innocent” spouse was not the breadwinner of the relationship, and was abandoned by the other spouse. A court could determine that it is “just and right” to split the property in such a way that would favor the innocent spouse because they were expectant of such benefits from their marriage before it dissolved.

  1. Business opportunities of the spouses

This factor considers whether a business opportunity and the benefits likely to follow would be unfairly withheld from a spouse. This often comes into play when a family-run business is a part of the community estate.

  1. Education of the spouses

A court can consider the sacrifice and investment involved in earning an education as well as the earning capacity of an educated spouse in its decision.

  1. Relative physical conditions of the spouses

Mental and physical disabilities can keep a spouse from earning toward community property. Physical conditions can also be costly, and the purported medical expenses can be considered in splitting property.

  1. Relative financial conditions of the spouses

The present financial condition of the spouses is certainly important in determining how to divide community property. If debts need to be paid, children need to be cared for, or loose ends need tying, a court can make its decision in light of these circumstances.

  1. Differences in the size of each spouse’s separate estate

A court can review the separate property of spouses to determine what a just and right division is. For example, a judge may find that a just and right division should consider a spouse’s benefit from inheriting a large estate.

  1. The nature of the property to be divided

Not all community property is in the bank, and what isn’t in the bank is usually not easily valued or calculated. Sometimes, value is in the eye of the beholder. Sentimental or personally important items can be evaluated in this light.

  1. Fault in the break-up of the marriage

While the goal of dividing community property is to ultimately do what is fair, not to punish a particular spouse, a court can take fault into consideration in its split. The emotional damage and social consequences of a “fault-driven” divorce can be costly, and a court is not blind to this.

  1. Attorney fees of the parties

Particularly in a “fault” divorce, the legal fees incurred by the “innocent” party can be considered in the split.

The Big Picture

A fault-based divorce might bring to light many of the above factors. These factors, however, are nonexclusive. A court is afforded very wide discretion in determining what is “just and right,” and it may consider all or none of these factors. This makes it all the more important to choose a lawyer who will consider every facet of your marriage, do the necessary digging to disclose any and all facts which may be used to preserve your property and get you a fair division of your community property.

Contact Hardy Law Group, PLLC today to schedule a free consultation to discuss your property division divorce.

Ryan Hardy of Hardy Law Group, PLLC

About the Author Attorney Ryan Hardy graduated from the University of Texas at Austin with a BS in
Government/Political Science and a minor in Business Administration...Read More