Tuesday, July 2, 2019
Lindsey Obenhaus Family Law Attorney, Goranson Bain Ausley LLC
SUMMER 2019 ISSUE FAMILY LAW MATTERS
Divorce is difficult and sometimes traumatic for those involved. Nearly half of all marriages today end in divorce. Divorce is one of the most disruptive events that can occur in a person’s life. Divorce affects the home, children, lifestyle, and relationships of the people involved. At its core, divorce is a financial transaction between partners. It is the process of untangling assets, debts, and other belongings acquired during a marriage. There is a common misconception in Texas that because we live in a “no-fault” state, marital property is split equally (50/50) between the spouses. People often walk into a divorce lawyer’s office simply stating they want “their half.” This is not often the outcome, nor is it what the law tells us to do. In fact, the Texas Family Code offers surprisingly little guidance on how to divide marital property, leaving room for courts to exercise discretion based on the evidence. Parties are often confused or surprised when property is divided disproportionately against their wishes; like the singer laments in the popular country song, “I’m Going Through the Big D and Don’t Mean Dallas.” This article provides basic information on how property is divided in a Texas divorce and touches on how gender roles have influenced the law on this issue.
First, it is important to know the different types of property dealt with in a divorce:
“Separate” property of a spouse includes property owned by the spouse prior to marriage, acquired by gift or inheritance during the marriage, or acquired as a result of some personal injury sustained during the marriage. Separate property is not divided in a divorce and is only confirmed to belong to one spouse.¹
“Community” property is all other property that is not separate property acquired during the marriage.²
Community property can be divided in a divorce. A lot of work can go into characterizing an asset as either separate or community property during a divorce case. But once the community estate is established, the Texas Family Code is vague about what to do next when dividing the community property.
Chapter 7 of the Texas Family Code is titled, “Award of Marital Property,” and the first section is titled “General Rule of Property Division.” That section states: 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.³
This is the almighty “general rule.” It is almost the only direction given in the statutes for dividing community property, excluding some instruction on out-of-state property, retirement plans, and insurance. But those sections have nothing to do with percentages of the estate, fault, fraud, or any of the other scandalous facts that often justify one party receiving more property than the other.
So what does the phrase “just and right” really mean when dividing community property between spouses? Over the years, Texas courts have interpreted “just and right” to include (but not be limited to) the following considerations when dividing property:
Fault in contributing to the breakup of the marriage (which includes adultery, cruelty, incarceration, confinement in a mental institution, and abandonment);
Benefits that an innocent spouse may have derived from continuation of the marriage;
Length of the marriage;
Difference in age of the spouses;
Future need for support by a spouse;
Disparity of income between the spouses;
Health and physical abilities of the spouses;
Education and training of the spouses;
Child custody and needs of the children;
Education and future employability of the spouses;
Tax consequences of the property being divided;
Increase in value of a spouse’s separate property through community efforts;
Size and nature of a spouse’s separate estate;
The creation of community property by the efforts, or lack thereof, of a spouse;
Expected inheritance of a spouse;
The type of property to be divided;
Attorneys’ fees incurred in the divorce; or
Any act taken by one party to devalue property or gain an unfair advantage.
These are only some of the factors generally recognized and acknowledged to exist in case law. The 1981 Texas Supreme Court case of Murff v. Murff is generally considered the best authority on obtaining a “disproportionate division” of the community estate.⁴ The list above demonstrates that the “just and right” language in the statute grants courts leeway to review the facts and circumstances of each case and rule accordingly. Despite the general belief that “just and right” means an equal division, there is no standard formula to divide assets.
Why do courts allow these types of claims to exist? Why not just order a 50/50 division in every case? It is important to look at history to answer this question. For years, Texas did not have any form of alimony, and to this day, it is hard to qualify for a claim of this nature (called “spousal maintenance”). Consequently, courts as early as 1929 attempted to protect women after a divorce when deciding how much property to award to each spouse. Courts considered the difficulties faced by wives who were unemployed, had children, lacked education and earning power, and had lost the security of having a husband.⁵Even though the status of women in society has come a long way since the 1920s, divorce lawyers have continued to find creative ways to get clients as much of the community estate as possible. These factors still apply when determining a “just and right” division and can be based on one spouse’s wrongdoing against another, or the general imbalances of life.
Divorce is a challenging and confusing process for many people. It is helpful to clear up misconceptions to increase knowledge and confidence for those considering the process. A clear understanding of a “just and right” division of community property is especially important for spouses who lack resources, such as stay-at-home moms or lower wage earners, and are worried about their financial situation after a divorce. In Texas, “just and right” rarely means half and half. A spouse expecting the palace might just end up with the Jeep.
Sources ¹ Tex. Fam. Code Ann. § 3.001 (emphasis added). ² Tex. Fam. Code Ann. § 3.002 (emphasis added). ³ Tex. Fam. Code Ann. § 7.001 (emphasis added). ⁴ Murff v. Murff, 615 S.W.2d 696 (Tex. 1981). ⁵ See Farris v. Farris, 15 S.W.2d 1082 at 1084 (Tex. Civ. App.—San Antonio, 1929, no writ).