I don't think it's fair for my stay-at-home spouse to get half of our assets. Is there anything I can do?

By Patricia Carter
September 21, 2011
TX FAQs/Asset and Property Issues

No, not for that reason alone. In Texas, how much one spouse worked during the marriage, or whether he or she worked at all, does not matter. All income earned during the marriage is community property, and unless there are other factors involved, like fault in the breakup of the marriage, each spouse is entitled to a “just and right” division of the community property, which is typically 50%. This is because Texas does not want to penalize a spouse who chooses to stay at home and take care of the kids and the house, as opposed to working. Texas assumes this was a decision made by both spouses, and the spouse that stayed at home is still entitled to the community property that was earned during the marriage. However, keep in mind that any property a spouse had prior to marriage, or acquired during marriage by gift, devise, or descent, is that spouse’s separate property. That spouse will be awarded 100% of his or her separate property.

If your goal is to be awarded more than 50% of the community estate, then you should speak with an attorney about arguing that you are entitled to a disproportionate share of the marital property. Below are examples of valid reasons as to why you are entitled to a disproportionate share of the marital property:

  1. fault in the breakup of the marriage;
  2. fraud on the community;
  3. benefits the innocent spouse may have derived from the continuation of the marriage;
  4. disparity of earning power of the spouses and their ability to support themselves;
  5. health of the spouses;
  6. the spouse to whom conservatorship of the child is granted;
  7. needs of the child of the marriage;
  8. education and future employability of the spouses;
  9. community indebtedness and liabilities;
  10. tax consequences of the division of property;
  11. ages of the spouses;
  12. earning power, business opportunities, capacities, and abilities of the spouses;
  13. need for future support;
  14. nature of the property involved in the division;
  15. wasting of community assets by the spouses;
  16. credit for temporary support paid by a spouse;
  17. community funds used to purchase out-of-state property;
  18. gifts to or by a spouse during the marriage;
  19. increase in value of separate property through community efforts by time, talent, labor, and effort;
  20. excessive community-property gifts to the parties’ child;
  21. reimbursement;
  22. expected inheritance of a spouse;
  23. attorney’s fees to be paid;
  24. creation of community property through the use of a spouse’s separate estate;
  25. the size and nature of the separate estates of the spouses;
  26. creation of community property by the efforts or lack thereof of the spouses;
  27. actual fraud committed by a spouse;
  28. constructive fraud committed by a spouse.

Patricia Carter is as attorney with Houston firm Short Carter Morris. She is board certified as a Family Law Litigator by the Texas Board of Legal Specialization. She can be reached at (713) 626-3345. View their Divorce Magazine profile.

 

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September 21, 2011
Categories:  FAQs

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