What Is A Just and Right Division of Property In Divorce?

Property Division

This article provides an overview of the general rule for dividing property in a Texas divorce as well as a discussion of the factors that a court will consider when deciding how to divide property.

The General Rule For Property Division In Divorce

The legal standard for property division in a Texas divorce is a “just and right” division of property. This is an equitable standard with a lot of built in discretion for any judge making the decision.

The rule derives from the Texas Family Code as set forth in Section 7.001 below:

In a decree of divorce or annulment, 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.

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.7.htm#7.001

“Just and right” does not mean equal in every divorce case. Over time, the courts developed a body of case law that guides judges making a division of property under this rule.

Property Division Only Applies To Community Property

It is important to note that a court only has legal authority to divide community property.

This means that the property division rules discussed in this article do not apply to separate property of either spouse. However, as discussed below, separate property belonging to one party or the other may be considered when dividing community property.

Factors That A Court Will Consider When Dividing Property In Divorce

Below is a list of factors a court will consider when deciding how to divide property in a divorce:

  1. a party’s fault in the breakup of the marriage;
  2. the relative education of both spouses, although a degree is not a dividable asset in which one spouse could claim some value from it;
  3. any disparity in the incomes, earning capacities, or business skills of the spouses;
  4. the relative age and physical conditions of the parties;
  5. other financial obligations of the parties, including attorney’s fees incurred as part of the divorce;
  6. the size of any separate estate or expected inheritance of a party;
  7. whether any particular piece of property has a unique benefit to one party or the other;
  8. whether either party is guilty of wasting community assets;
  9. whether either party received temporary support during the divorce as well as a party’s failure to make any temporary support payments as ordered by the court;
  10. any gifts between the spouses during the marriages as well as excessive gifts to children of the parties;
  11. particular needs of any adult children such as disabled adult children;
  12. tax consequences associated with a particular asset;
  13. whether either party committed fraud on the community during the marriage;
  14. if children are involved, the court can consider which parent will have the primary burden of caring for the children when dividing property;
  15. each party’s behavior during the divorce proceedings; and
  16. the source of assets used to acquire the community estate, for example, if separate property was used to acquire community assets equity may require awarding those assets to the spouse whose separate property was used.

This list is not exclusive, but provides a summary of the more common factors courts will consider when dividing property in a divorce.

If you would like to schedule a consultation to discuss your divorce, then please send me an e-mail or click here to schedule a consultation online.

Bryan Willis
What Is A Just and Right Division of Property In Divorce?

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