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Community Property Doesn’t Always Mean 50/50

April 2019

In Texas divorces, the law does not say community property must be split evenly down the middle between spouses.  What it says is the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.  There are a variety of reasons a court might make a disproportionate division of community property favoring one spouse over the other.  As a practical matter, what judges do is start with a 50/50 division in mind and then consider arguments on both sides for considering why one party should be awarded more or the other one less. 

What are the considerations that would make a court award one side more than the other?  Certainly, there are “hot-button” issues we see in popular culture; i.e., infidelity, physical abuse, drug abuse, sexual abuse, etc.  There are even more activities that come under the banner of “wrongdoing,” such as financial mishandling, wasting of assets or fraud.  Even though tabloids and soap operas would have you believe these are the most powerful arguments favoring a disproportionate division of community property, they are not.  Of the commonly occurring scenarios, probably the most powerful arguments favoring a disproportionate division are some combination of age, disparate earning capacities, and the size of the estate to divide. 

For example, if a twenty-year-old couple divorces after one year of marriage, have a community estate of $2,000 in savings, no children and equal earning ability, it’s a near-certainty that the court would award each $1,000 and easily grant their divorce. 

By contrast, if a sixty-year-old couple divorces after forty years of marriage, their children are grown and raising families of their own, the husband still earns $300,000 yearly at the time of divorce, the wife has never worked outside the home and there is a community estate of $700,000, there will almost certainly be a disproportionate division favoring the wife.  The reason is mainly based upon need.  The community estate to be divided is not much more than twice the husband’s continuing earnings and the wife will need to save all she can post-divorce.  The court might even supplement the award to the wife with spousal maintenance for some duration. 

For purposes of these examples, I have assumed there are no additional relevant facts that the court should consider. 

There is a place for allegations of wrongdoing that might move the court to award a bit more to one side than the other.  But in my experience, these salacious, “finger-wagging” claims of wrongdoing register as smaller considerations than the need-based factors.  There is really no substitute for experience and judgment when it comes to evaluating the weight to be given to factors a party might want to argue to the court for a disproportionate division of community property.  If you would like an analysis of whether the facts you your particular case would support a disproportionate division of community property, please contact The Law Office of David A. Kazen to schedule a consultation. 


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