How can I get a disproportionate share of the martial estate in my Texas Divorce?
When you reach the point where you decide that a divorce is necessary you probably have a reason (or twenty) as to why this is the direction you want to take your marriage. Whether your it is a specific action or a series of pretty mundane offenses, the divorce will occur because something justified hiring a lawyer, filing paperwork and serving them on your spouse. A divorce is a serious life step to take, after all.
What happens when you have a very good reason for getting a divorce? Can the reason you’re asking for a divorce actually allow you to recover more property than you otherwise may be entitled to? The answer is the lawyer’s favorite response: “It depends”. This blog post details some essential pieces of knowledge you ought to have on your ability to be awarded a disproportionate (more than 50%) share of the marital estate in your divorce.
How a specific fault in the breakup of your marriage affects your finances
Texas, like many other states, allows you to get a divorce for no reason in particular. This is called a “no fault” divorce. In a no fault divorce you state to the court that you are divorcing your spouse because of irreconcilable differences and/or conflict of personalities. In English this means that you can no longer get along with your spouse and that there is no expectation that you ever will be able to again. This is the most common way to state your reason for the divorce in our state.
However, there are specific fault grounds that you can cite when getting divorced. Perhaps the most common fault ground for a divorce is adultery. Either you have seen the adulterous acts happen with your own two eyes or you became aware of the acts through a text or Facebook message, it is understandable to want to end the marriage as a result of learning that your spouse is not being faithful to you.
Let’s go with the adultery example to discuss our big picture topic of winning a disproportionate share of the marital estate in your divorce case. Once you assert the reason for the divorce having been filed you have to be able to substantiate the allegation. By this I mean that you cannot merely allege that your spouse has cheated on you. Evidence must be presented to the judge in your case.
Assuming that you have met this challenge, the next step in the process is to have a judge consider whether to award you a disproportionate share of the marital estate. A judge will consider what sort of division is “just and right”. What does just and right mean in the context of Texas Family Law?
When infidelity affects the property allocation in a divorce
A former client of the Law Office of Bryan Fagan, PLLC had the following happen in a trial. Our client was the wife in marriage where she had reason to believe that her husband had committed adultery against her. Given that she did not want to file for divorce immediately she suggested marriage counseling as way to attempt to reconcile with her husband. Her husband refused to go to counseling but without tangible evidence to prove that her husband was being unfaithful she continued in the marriage.
Months later she discovered personal belongings of another woman in the marital home. At this point she moved out of the home and hired our office to represent her in the divorce. It took some effort but eventually we were able to learn of the adultery through written proof provided by her spouse in the discovery phase of the case. Sounds like a good thing for our former client, but what did the judge have to say?
Is evidence of affair necessary at the outset of divorce or merely prior to judgment?
Her adultery assertion coupled with her request for a disproportionate share of the marital estate hinged on whether or not it was necessary to show a judge proof of the adultery at the time she alleged this fault ground as the reason for the breakup of the marriage. If the proof was necessary the moment she listed adultery as her ground for the divorce then she may not be able to collect the share of the estate that we had hoped she would be awarded.
Ultimately the judge sided with our client in reasoning that even though she had no tangible proof of the adultery at the time she alleged it in her Original Petition for Divorce, the fact that she was able to prove it prior to trial won the day for her. She won the disproportionate share of the community estate that she had been working towards throughout her divorce case. While each divorce case is unique, this is a result that I believe should be held as the standard in situations that involve fault grounds for divorce and a claim for a greater than 50% share.
Family law question? Contact the Law Office of Bryan Fagan, PLLC today
Your divorce is one of the most important times in your life. Making an investment in an experienced and detail oriented attorney is smart in both the long and short terms. The Law Office of Bryan Fagan, PLLC offers the sort of expertise and understanding that it is not always common among attorneys. Finding an advocate who can strike that balance is absolutely essential to a successful divorce case.
If after reading this article you have additional questions on the subject of divorce, community property and fault grounds, please do not hesitate to contact our office today. A licensed family law attorney will be happy to meet with you to answer questions and provide you with more information about our office and the services we provide. Thousands of southeast Texas families have built relationships with our office and we would be honored to speak to you about your legal matter in a comfortable and convenient setting.