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Top Five Property Division Factors in Texas


The Lone Star State is a community property jurisdiction. But in Texas, the 50-50 community property split is only a presumption. Instead, state law requires that the marital estate, including both debts and assets, be distributed in a “just and right” matter.

So, in many respects, Texas is more like one of the many equitable distribution jurisdictions in America. A 50-50 split is usually just and right in most cases, but that’s certainly not always true.

To overcome the community property presumption, a Houston property division lawyer must present substantial evidence regarding one or more of the following factors. Attorneys must be mindful of these factors during settlement negotiations as well. Harris County judges usually do not approve divorce settlements which ignore key property division factors.

Relative Age and Health of Each Spouse

Courts usually order disproportionate divisions to address economic disparity. Generally, young and healthy people have considerable earning potential. If the spouses were roughly the same age and in roughly the same shape, which is usually the case, this factor is not terribly significant. But if there is a considerable disparity, this factor alone could justify a disproportionate distribution.

Fault in the Breakup of the Marriage

Texas is one of the only states where marital fault, such as adultery, is relevant regarding property division and spousal support. This factor usually comes up in one of two ways. Some spouses argue that the marriage would have lasted longer, and therefore their property settlement would have been for more money, if not for the other party’s fault. Other spouses point to dissipation (waste) of marital assets. If Husband spends $10,000 on gifts to a girlfriend, Wife might be entitled to a disproportionate share to make up for that loss.

Future Earning Capacity

This factor is related to the first one, but economic disparity is a lot more common than physical disparity. Statistically, divorced women are much more likely to live in poverty than divorced men. However, to take full advantage of this reality, a Houston divorce attorney must do more than introduce statistical evidence. There must be specific facts, such as Wife’s lack of education, that point to future disparity. And, because of the community property presumption, there must be considerable evidence on this point.

Separate Property Awards

The divorce rate among subsequent marriages is much higher than the divorce rate for first marriages. So, this factor comes up a lot. If Wife had substantial separate property because of a prior divorce settlement, that property might offset her lack of education.

Custody of Minor Children

Usually, it’s in the best interests of the children for them to remain in the family home. So, the residential parent often receives title to the home. The nonresidential parent often receives a lien for his or her share of the equity, if any. Additionally, residential spouses often need additional money or property to help make mortgage payments and meet other homeowner-related expenses.

Rely on a Dedicated Lawyer

Texas might be a community property state, but divorce property divisions are not always 50-50. For a confidential consultation with an experienced family law attorney in Houston, contact Lindamood & Robinson, P.C., Attorneys at Law. After-hours visits are available.




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