Division of Property Upon Divorce aka How to get a bigger piece of the pie

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!