Division of Property Upon Divorce aka How to Get  a Bigger Piece of the Pie

By Nancy L. Rommelmann, Family Law Attorney –

Parties often assume that upon divorce the estate will be dividing equally. Section 7.001 of the Texas Family Code (TFC) provides that “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 of the rights of each party and any children of the marriage.” The TFC states that a party should be awarded a disproportionate share of the parties’ estate for the following reasons, including but not limited to:

  • Fault in the breakup of the marriage;
  • Benefits the innocent spouse may have derived from the continuation of the marriage;
  • Disparity of earning power of the spouses and their ability to support themselves;
  • Health of the spouses;
  • The spouse to whom conservatorship of the child[ren] is granted;
  • Needs of the child[ren] of the marriage;
  • Education and future employability of the spouses;
  • Community indebtedness and liabilities;
  • Tax consequences of the division of property;
  • Ages of the spouses;
  • Earning power, business opportunities, capacities and abilities of the spouses;
  • Need for future support;
  • Nature of the property involved in the division;
  • Wasting of community assets by the spouses;
  • Credit for temporary support paid by a spouse;
  • Community funds used to purchase out-of-state property;
  • Gifts to or by a spouse during the marriage;
  • Increase in value of separate property through community efforts by time, talent, labor and effort;
  • Excessive community-property gifts to the parties’ child[ren];
  • Reimbursement;
  • Expected inheritance of a spouse;
  • Attorney’s fees to be paid;
  • Creation of community property through the use of a spouse’s separate estate;
  • The size and nature of the separate estates of the spouses;
  • Creation of community property by the efforts or lack thereof of the spouses;
  • Actual fraud committed by a spouse and
  • Constructive fraud committed by a spouse.

“It’s food for thought and  how to get a bigger piece of the pie!”