Texas divorce courts do not simply divide community property 50-50. Instead, Texas law provides that community property is split according to what the judge deems “just and right.” In other words, division of property must be fair and equitable.
Community property division in Texas divorce is determined according to what the judge deems “just and right,” rather than simply dividing the property 50-50.
Texas is one of nine states that is a community property jurisdiction. Generally speaking, this means that any property acquired by a couple during their marriage is equally owned by both spouses.
This may include wages, pension and employment benefits, real property and personal property. Community property does not include anything one spouse owned prior to the marriage, property received as a gift or inheritance by only one spouse, and any recovery for a personal injury claim (except for loss of earning capacity).
Here’s How “just and right” Determines Community Property Division in Texas
Texas divorce courts do not simply divide community property 50-50. Instead, Texas law provides that community property is split according to what the judge deems “just and right.” In other words, division of property must be fair and equitable.
In applying the “just and right” rule, Texas courts many consider many factors, including:
- Length of marriage (the longer the marriage, the more willing judges are likely to be to deviate from a 50-50 split)
- Reasons for divorce and fault in the breakup of the marriage
- Disparity in earning power
- Contributions to the home
- Custody of minor children
- Financial and parental responsibility for adult children
- Health of each spouse (disability of a spouse may result in an uneven distribution)
- Education and future employability
- Tax consequences of property division
- Attorney fees for the parties
- Foreign property outside the court’s jurisdiction
- Need for future support
The Supreme Court of Texas has stated (in the case of Murff v. Murff, 615 SW2d 696 (1981)) that courts may consider “such factors as the spouses’ capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property.”
Responsibility for raising children, large differences in earning capacities, and really bad behavior (including fraud and waste of community assets) during the marriage may result in an uneven division of community property.
If requested by a party after trial, the court is required by law to support its dissolution judgment with a written decision setting forth its “findings of fact and conclusions of law” as to characterization of each party’s assets, liabilities, claims and offsets on which disputed property has been presented, as well as the value of the community estate’s assets, liabilities, claims and offsets on which disputed property has been presented.
Community Property Laws are Default Laws
Couples may, by means of either a valid pre- or post-nuptial agreement, divide their property as they see fit. Texas is among the states that recognizes the legal enforceability of postnuptial agreements, also known as partition agreements, as long as both spouses voluntarily sign the agreement and the agreement is not unconscionable (excessively unfair) toward one spouse.
Separate Property Not Subject to “Just and Right” Rule
Separate property will not be divided in a divorce. That said, one spouse may be able to seek reimbursement for improvements made to the other spouse’s separate property. The court may adjust the community property division to compensate the spouse entitled to reimbursement.
Importantly, unless the parties agree, the spouse that is claiming that property is separate must be able to prove it by “clear and convincing evidence.” In the absence of such proof, it will be considered community property, subject to the “just and right” rule and the foregoing factors.
Source: April Nordhaus, Nordhaus & Nordhaus, McKinney, TX
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