Property Division: How does a court determine what is Just and Right?

Property Division: How does a court determine what is Just and RightProperty Division: How does a court determine what is Just and Right?

 We have written many times about the phrase “just and right” in terms of the division and confirmation of marital property. That’s because unlike some states where community property is split evenly between both spouses, Texas is a community property state. Its courts must divide an estate based on what they feel is just and right. In other words, as fair a split as possible.

That’s not always easy. Each marriage is different and dictates which factors should be considered in a divorce case. A court has broad discretion when dividing a community estate and generally considers a number of factors. These factors are divided into four categories.

The purpose of this article is to discuss those four categories in detail, and what factors fall under each one, per the Texas Family Code.

Hopefully this will give you, the reader, a better understanding of what “just and right” means.

The spouses’ ability to support themselves

  1. Which spouse has custody of the couple’s children.
  2. The disparity of earning power between spouses, including business, education, capacities, abilities and future employability.
  3. The value of the spouses’ separate property and their relative financial conditions.
  4. The spouses’ health and relative physical conditions.
  5. The spouses’ age, usually as related to earning capacity and health.
  6. The liquidity and income-producing potential of the property allocated to each spouse.

A spouse’s wrongdoing

  1. Who is at fault for the breakup of the marriage.
  2. One spouse’s actual or constructive fraud in transactions involving community property.
  3. One spouse’s tortious conduct against another.

The financial costs incurred by a spouse while the suit is pending or after final judgement

  1. One spouse’s payment or nonpayment of court-ordered temporary spousal support while the case was pending.
  2. The expenses one spouse paid to maintain community property while the case was pending.
  3. The attorney fees and costs each spouse incurred in litigating the suit.
  4. The tax consequences that may result from the division of the community estate.

Other considerations

  1. The length of the marriage.
  2. The nature of the couple’s property. There are several factors involved here, including whether one spouse may be better able to manage a particular piece of property, or the property may be more closely associated with one spouse.

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Property Division: How does a court determine what is Just and Right