No! The first rule is that a Court cannot divide separate property. So, without a lot of complicated footnotes attached, if the property in question was inherited, owned before the marriage, or was the result of personal injuries sustained while married (except for lost earning capacity), then it is 100% yours. The second rule is that a Court of the State of Texas is charged by statute (Texas Family Code §7.001) to order a division of the property 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. That is it. Sound like that is a pretty broad pitching zone for splitting things up? It is, and a Texas appellate court’s approval or disapproval of any division is based on a standard of “abuse of discretion.” So, your trial judge clearly does not have to divide your property 50/50. Now, over all the years Texas has had appeals courts and divorces, there have been some guiding factors handed down and thrown into the mix to help our black-robed jurists figure out what would be a “just and right” division.
A Texas Trial Court Judge hearing a divorce case may take several things into consideration in dividing the property and debts of the parties. Things such as:
1. the spouses’ capacities and abilities,
2. business opportunities,
3. education,
4. relative physical conditions,
5. relative financial circumstances and obligations,
6. disparity in ages,
7. size of a parties’ separate estate,
8. the nature of the property to be divided,
9. temporary alimony or spousal maintenance being paid,
10. fault in the breakup of the marriage,
11. benefits a party, not at fault, would have derived from the continuation of the marriage,
12. any disparity in the earning capacities or income of the parties,
13. dissipation of the community estate,
14. concealment of community assets by a spouse,
15. failure to do what the court has ordered a spouse to do while the case has been pending,
16. the needs of a disabled adult child a party will be caring for after the divorce,
17. where the property is situated,
18. reimbursement claims,
19. the fraud that may have been committed by a spouse,
20. other actions such as suits for assault and battery by one spouse on the other, and
21. attorney fees incurred in the divorce.
Bet you are wondering if all these factors are ranked somehow – from most important to the least important? They are not. It all depends on your particular judge in your particular case. Your judge can double the weight he or she gives to who was at fault in the divorce – or remove from consideration a factor such as temporary spousal payments made. To make it even more unsystematic, no Judge that I have known in my 43 years of trying divorce cases sits on the Bench and checks off a list for and against each side. They hear the evidence and then, after consideration, just know what would be a proper division – or as statutorily commanded – what is just and right. It is sort of like making a chef salad, the judge in your case may like the cherry tomatoes better than bell peppers, and so you hope your salad is real heavy in cherry tomatoes and real light in bell peppers.
The point is that a trial judge in Texas has a vast amount of discretion in dividing your property, and more than likely it will not be 50/50. An argument over the value of a piece of property you both own- be it your house or an antique – can change the division ratio by a huge margin. Therefore, what you have to do is be prepared when you see your lawyer. Review the factors I have listed and bring that lawyer your view and any evidence on why a particular element should be more in your favor rather than your spouse. Be realistic in what you want as far as a split goes. Asking for 90% of the marital estate because your spouse cheated on you is not going to happen even though it feels like it should. Judges see and hear from cheating spouses every day. However, showing the particular situation you are now facing because you have to divorce that cheating spouse can often carry the day and get you more of your community estate with which to begin anew. Dividing your marital estate is about balance and vision for the future – and less about being equal. Whether it is negotiating before trial, during mediation, or going before your judge for a final hearing – emphasize and have evidence for the factors that benefit you. If you do not bring up the checklist factors favoring you – WHO WILL?