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Property Division in a Divorce: Should I Get More Than 50%?

By January 13, 2020

In Texas, property acquired by spouses during marriage is considered community property. Deciding how to divide that property during a divorce can be difficult. In the end, whether by agreement or by the judge’s ruling, the property division must be “just and right.” But just and right does not necessarily mean an equal 50/50 split. Any Fort Worth divorce lawyer would tell you: it is not uncommon for one spouse to end up with more than 50 percent of the property.

If you are in the middle of a divorce or considering one, you may be asking yourself the following question:

When should I get more than 50 percent of the community estate?

When dividing the community estate, judges have broad discretion to make a “just and right” division. There are a few circumstances when the court would give one party a disproportionate share of the estate — mainly when one spouse has greater need or when one spouse is responsible for the breakup of the marriage. Texas case law provides factors in these two categories that the judge can consider in determining whether to award one spouse more than 50 percent of the community property.

Need-Based Factors

If your spouse has worked for many years while you have been a stay-at-home parent or if your spouse earns significantly more than you it can seem unfair to split the marital property down the middle, knowing that your spouse will have 100 percent of their future income and you may be left with only what you were awarded in the divorce. Although this may be a situation where spousal maintenance (as alimony is called in Texas) would be appropriate, the courts can also use a disproportionate property division to help you stay on your feet after the divorce is final.

In considering the respective need of each party, the judge may look at several factors, including the education and earning power of the spouses, the length of the marriage, the tax consequences of the property division, and the size of each spouse’s separate estate. So, if one spouse came into the marriage with significant assets, the court may award a larger share of the marital estate to the spouse with fewer separate assets. A spouse may also be awarded a larger share when he or she is disabled while the other spouse is still able to work.

A common scenario when a court might award one spouse a greater portion of the estate involves one parent who has spent several years out of the work force to raise a family while the other parent has used those years to advance his/her career. Upon divorce, one party has a high earning potential, while the other party may have difficulty finding a job that will enable them to support themselves and their family. By awarding a disproportionate share of the community estate, the court can help the spouse with lower earning power support their family and have time to find a job or obtain education to increase their own earning power.

Fault-Based Factors

Sometimes one party is responsible for the breakup of the marriage, for instance when one spouse commits adultery, cruelty, physical abuse, or criminal behavior. In this case, the judge will consider the benefits that the spouse who bears no responsibility for ending the marriage would have received if the marriage had continued. If the innocent spouse would have received the benefit of the other spouse’s income and assets, the court is warranted in awarding a greater share of the estate to the innocent spouse.

If you believe that these factors apply to your case, or you are looking for an experienced Fort Worth divorce lawyer, call our office to speak with a family law attorney today.