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 addition to these factors, there are also additional causes of action in divorces which would allow or create argument for a disproportionate share of the community estate.
As discussed, a spouse's "fault" in the breakup of the marriage can be considered by the trial courts when it is dividing the community estate between the parties. The key word here is "may" consider as the Texas Supreme Court and many appellate courts after it have adjudicated that the trial courts in Texas are not necessarily required to consider the other party's fault. In fact, seemingly, trial courts have a wide discretion when it comes to fault grounds and division of the community estate. That is, in addition the above referenced wide latitude, if a party pleads for a fault divorce, the Court can hear evidence of fault, enter a divorce on no-fault grounds (that is a divorce would be granted based upon insupportability--as defined in Texas Family Code Section 6.001), and still award a disproportionate share of the community estate. In fact, the Beaumont Court of Appeals in Phillips v. Phillips
held that in addition to or even excluding fault, there is a nonexclusive list of factors that a court can consider in determining whether or not to award a disproportionate share of the community estate.
The fault grounds are listed above and the most common used is adultery. In Abernathy v. Fehlis, the Austin Court of Appeals held that the husband's adultery caused the breakup in the marriage and thus justified a disproportionate share of the community estate. Interestingly, the Houston 1st District Court of Appeals in Bell v. Bell
held that the adultery does not end at separation and includes any adultery committed after separation.
The Texas Supreme Court in Young v. Young
held that in addition to considering fault of one spouse, if argued concurrently, the trial court can also consider benefits the innocent spouse would have received if the marriage continued. For example, in Hopkins v. Hopkins
, the Corpus Christi Court of Appeals the medical benefits a wife would have been entitled to had she been or continued to be a wife of a retired Air Force officer. Therefore, in pleading fault, also consider any benefits that you currently receive or would receive if the marriage continued.
The Eastland 11th Court of Appeals in Duncan v. Duncan
said it best--"the circumstances of each marriage dictate what factors should be considered in the properly division upon divorce."