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What does fairness mean in a divorce court when it comes to splitting property?

There’s more to life than money, stuff, property, etc. If you have kids then you know this to be an ironclad rule. If you don’t have kids you probably still have aspects of your life that are more important to you than your “stuff.” None of this is to say that your property is not important, however. If you are to the point in your case where a settlement has not been reached on issues regarding property that means that your only recourse is to prepare for a trial. Most divorces are decided by a “bench” trial to a judge rather than a jury trial as you may have seen on television or the movies.

In yesterday’s blog post we discussed in some detail what it means to live in a community property state, as Texas is. One topic that is always interesting to spend some time on is how a judge in your case would apply the community property laws of Texas to your facts and circumstances. If you read enough blog posts about this subject you may have been led to believe that community property means that there will be an absolute 50/50 split of all the community property in your married life. That, however, is not the case necessarily.

Today we will go over what a division of your community estate could look like and will get into a subject that most people assume they know about when they really don’t. That subject is what the phrase “equitable distribution” means. Here’s a hint: equity does not necessarily mean equal.

How will a judge split up your community estate?

Marriage is a joint venture between you and your spouse. Each of you have contributed (or detracted from it) in certain ways that in the end create a pie that is known as your community estate. For some of you, your pie will be rather large that needs to be split up in the event of a divorce. For others, yours will be on the small side. Ultimately the size of your pie is just one factor that a judge will look to in deciding how your marital estate needs to be split between you and your spouse.

Equity is important in this equation. What is equity and what does it mean though? As I stated early, equity does not mean equal in all scenarios. If neither you nor your spouse did much of anything wrong to one another and earn similar incomes and have similar prospects for future income then your share of the community estate may very well be 50%. However, most divorces are not like this and other circumstances will come into play.

Equity means fairness much more than it means equal. Fairness requires a judgment, an interpretation hopefully that is based more on objective circumstances rather than subjective opinions, but a judgement nonetheless. Fortunately the person who will be making that judgement literally is a judge so that works out.

The benefit of this sort of breakdown is that it does not rely too much on either the law or on your individual circumstances. The best case for you and your spouse alike is to have your case assigned to a judge who can apply the law in ways that make sense for you and your family. The benefit of settling your case before trial was that you could have had total say-so over the outcome, as far as you and your spouse are concerned. That is no longer possible as you have a third party decider (the judge) who has not stepped in to usurp that role. That’s not to say that a judge can’t be objective, fair and balanced, however.

Factors that a family law court judge will apply in your divorce to divide property

Without further adieu, let’s get into the factors that a judge will weigh to determine how community property will be divided in your divorce.

Future income potential of you and your spouse will be examined. Say that you are a physician who has the potential to earn $250,000 per year for the next thirty years of your life. This should allow you to live a great life, save for retirement, give to charity, etc. to a degree that most of us will never achieve in our professional lives. Your spouse, however, is a stay at home parent who actually worked evenings waiting tables before you had kids in order to support you and the family while you attended medical school. Now you are divorcing and your spouse is worried that she will be in trouble financially due to your divorce.

A secondary point to this factor that I would like to make is that your spouse’s services as a homemaker in the above example will not go unnoticed by most judges. Keeping your home in great condition, ensuring the kids get to school and do well in their studies and everything else associated with being a home-maker are very important. If you don’t agree, consider how much it would cost for you to pay for daycare, cleaning, cooking and other services that your spouse would provide. I’m willing to bet that the costs would equal the salary that your spouse could earn had she chosen to work rather than stay at home to help the family in that way.

Your spouse need not worry in most circumstances because this is a classic example of how a judge will do an analysis of your and your spouse’s earning potential to determine how to split marital property. If all other factors are equal, future income capacity could tip the scales in this example towards awarding a greater than fifty percent share of your marital estate (called a disproportionate share) to your spouse.

What separate property do you own versus what separate property does your spouse own?

A similar analysis will be done in regard to this factor as we saw applied in the above example regarding future income capacity. If your spouse inherited a bunch of money during your marriage and came into the marriage with a lot in the way of separate property then you may be in line for receiving a disproportionate share of the community estate.

Did you or your spouse spend time wasting community resources through your bad behavior?

Did you splurge money into ill-fated investments without the consent of your spouse? Did you have multiple affairs where it was proven that you bought expensive gifts and trips for your paramour? Did you and your spouse have to take out loans to pay for your child’s college expenses because your bad money habits led to you all not being able to save sufficiently? If so, then this could lead your spouse to have a strong chance at being able to receive a greater than fifty percent share of your community estate.

Finally, fault grounds will play a role in your property division. There are a number of specific faults that you can cite in your petition for divorce as to why you and your spouse ultimately split up. Maybe it was domestic violence, or infidelity, abandonment or any of the other fault grounds listed in the statutes that caused you to file for divorce from your spouse. If you provide sufficient evidence to prove those grounds to the judge then you are likely in line for a “good” outcome when it comes to dividing up property.

Who gets the house in your divorce?

Are you at all curious about which one of you and your spouse will end up being awarded your home in the divorce? If so then come back to our blog tomorrow to read more on that subject.

In the meantime if you have any questions for us please contact the Law Office of Bryan Fagan, PLLC. We can discuss your questions in a free of charge consultation with one of our licensed family law attorneys. We work tirelessly on behalf of our clients and would be honored to discuss how we could do the same for you and your family.


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