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Elements a Court Can Consider in Making a Disproportionate Property Division in Divorce

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Disproportionate property division is more common than you may realize. Although there is a presumption in Texas that divorcing couples will split all assets and property down the middle, disproportionate divisions are not unheard of when the facts of the marriage support it.

Earning Disparity One of Many Elements

There are many elements - more than 20, in fact - that a court can consider in making a disproportionate property division.

A common and clear element is that of earning disparity between the divorcing parties. The executive of a midsize company, for example, will have higher income than a stay-at-home spouse, who may have earned little to no income during the marriage. An additional element in this scenario may be the stay-at-home spouse's future job prospects. If the spouse remained out of the workforce for many years, those job prospects may not be positive.

The financial impact of earning disparity between the executive and the stay-at-home spouse cannot be overstated. For obvious reasons, the judge may be inclined to make a disproportionate division of property in this case.

Other Common Elements that Come in to Play

In addition to earning disparity and future job prospects, a court may often consider, among other facts, the following elements:

  • Education levels
  • Personal health
  • Length of the marriage
  • Separate (non-marital) property

To take education as an example; the business executive may have an MBA, perhaps acquired during the early years of the marriage, while his or her spouse worked full- or part-time for financial support. A few years later, the spouse left the workforce entirely to raise children and never attained a similar level of education as the business executive with the MBA.

To take separate property as another example; let's assume that the stay-at-home spouse entered the marriage with significant assets at his or her disposal. Assuming that these assets are characterized as separate property, a disproportionate property division may not be necessary or warranted under the circumstances.

Learn More About Complex Property Division

Every case and situation is different. Property division is often one of the most complex matters in any divorce case.

  • To learn more about this subject, see our page on complex property division. We write about a wide variety of scenarios: What is community property? What is separate property? How do you deal with retirement accounts? How do you value assets? To speak with the lawyers of Kerr, Hendershot & Cannon, P.C., call 713-893-1668.

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