When parties divorce the Court, according to Texas Family Code Section 7.001, makes a "just and right division" of the community estate. For most parties, this typically means an equal split of the community estate as to the assets and debts. However, there are some instances in which the Court could award a disproportionate share of the community estate and the statute allows for such as it does not mandate an equal division. In fact, the trial court has a lot of discretion in dividing the community estate.
For a disproportionate share of the community estate, the controlling opinion was issued in 1981 by the Texas Supreme Court in Murff v. Murff
. There, the Court set out several factors for the courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses' capacities and abilities; benefits which the party not at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses' educations; spouses' relative physical and financial conditions; spouses' separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least one year); or parties' attorneys fees.
In particular, disparity of earning power has become a major factor in divorces especially those in which one spouse has been the breadwinner of the family. For instance, the Houston 1st District Court of Appeals held in Robbins v. Robbins that the trial court was correct in its decision to award the wife 58% of the community estate and the husband 42% of the community estate. The Court concluded this was because the wife had been out of the working community for quite some time and the husband had a much greater earning capacity than the wife.
Therefore, it is not always as we say "50/50" in a divorce. There are some instances, such as earning power, capacities or abilities that necessitate an unequal division of the community estate. At the same time, there are also instances in which despite the disparity in earning power, an equal division of the community estate is justified. In fact, the Houston 14th District Court of Appeals held in Hanson v. Hanson that while it could award a spouse with less education and earning power a disproportionate share, it does not necessarily have to if the community estate is large enough that an equal division would satisfy the requesting spouse's financial needs. Thus, as with all divorces, no case is the same and it will truly depend on the circumstances in front of the court on that particular day.