Divorce and Disproportionate Division Murrah And Killough PLLC

Kathleen Witkovski

Murrah & Killough, PLLC

3000 Weslayan Street, Suite 305

Houston, Texas 77027

281-501-1601

DIVORCE AND DISPROPORTIONATE DIVISION

What is the law on the division of property?

Texas Family Code Sec. 7.001. General Rule of Property Division: “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.”

What is the “estate of the parties”?

The Court can only divide the Community Property (CP) estate of the parties.

Community Property Presumption –All property, whether real or personal, acquired during the marriage is presumed to be CP

Overcoming the Presumption of CP – A party claiming certain property to be his/her Separate Property (SP) may overcome the CP presumption by presenting evidence that the property is SP by way of it being: 1) Owned prior to marriage; 2) Inheritance; or 3) a Gift.

Why would one party get more in the division of the estate than the other party?

A “just and right” division means that the estate of the parties should be divided fairly. A court may consider circumstances that are specific to a particular divorce matter to determine what is fair, which may mean that one party would receive more than 50% of the estate. This is called a “disproportionate division”.

Disproportion Division – Murff v. Murff (Texas Supreme Court 1981): The Court has wide discretion in dividing the estate of the parties. The Court may consider many factors in making a just and right division, including the following:

a. fault in the breakup of the marriage;

b. disparity of earning power of the spouses and their ability to support themselves;

c. spouses' capacities and abilities;

d. benefits which the party not at fault would have derived from continuation of the marriage;

e. business opportunities;

f. education;

g. relative physical conditions;

h. relative financial condition and obligations;

i. disparity of ages;

j. size of separate estates; and

k. the nature of the property.

This is an illustrative list. The Court may consider other factors that are specific to that particular case.