If you are going through a divorce and you are anxious about how you’re going to survive without your spouse’s income in the future, you should do everything you can to obtain a disproportionate share of the community property in your case.
Any division of property in a Texas divorce must meet the “just and right division” standard. The phrase “just and right” is not defined in the Texas Family Code, but essentially means that the division is fair based on all of the varied circumstances of your case. Practically, the starting presumption in every divorce case is that an equal (50/50) division is “just and right,” but judges have wide discretion in awarding a disproportionate share of community property in favor of one party under certain circumstances.
The most common factors a court will consider when deciding whether to award a disproportionate share are:
- Length of the marriage
- Fault in the breakup of the marriage (i.e. adultery, cruel treatment, abandonment, etc.)
- Whether one spouse has significantly more earning power than the other
- Whether one spouse was a stay at home parent
- Age and health of the spouses
- Which spouse is going to be the primary caregiver of the children
- Whether one spouse has a disability that prevents them from working
- Each spouse’s need for future support
The more of these factors you meet, the higher your likelihood of being awarded a disproportionate share of the community estate in a divorce.
A disproportionate share can be achieved in a wide variety of ways, so it is best to have a clear understanding of what your financial needs will be in future once your divorce is finalized. For example, it may be much more important for you to be awarded more of the liquid cash on hand than it is to have a bigger share of the retirement accounts. It may be more important to keep stocks and bonds than it is to keep the marital residence, or you may want to have a larger portion of the equity in the marital residence up front in order to kick-start your new life.
With proper planning, solid evidence of your need for a disproportionate share, and experienced attorneys guiding you through the process, you can maximize the amount of assets you take out of your divorce.