Final Division
Some cases settle informally with the exchange of drafts. Cases that do not are often required to participate in formal mediation. When cases do not settle informally or in mediation they proceed to trial and the court hears evidence and orders a division of the community estate. It is important to be mindful that the courts are not bound to divide assets equally. In Texas the court divides the community estate of the parties, including assets and debts, in a “just and right” manner taking into account a number of factors that I’ll discuss momentarily.
Who gets what and how much are secondary inquiries, however. The first inquiry is the legal characterization of the asset or debt. Generally there are two kinds of property in Texas: separate property and community property.
LEGAL DEFINITION: “Community property consists of the property, other than separate property, acquired by either spouse during the marriage.”
Judges are instructed by law to presume that all property possessed by a spouse during or on dissolution of a marriage is community property. Community property is the only property subject to division by the court on divorce.
Separate property is not subject to division and on divorce must be confirmed to the spouse whose separate property it is.
LEGAL DEFINITION: “A spouse’s separate property consists of: (1) property owned or claimed by the spouse before the marriage; (2) the property acquired by the spouse during the marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during the marriage.”
QUESTION: My mom gave me this ring before she died. My grandpa died and devised these guns to me in his will. My aunt died without a will and I inherited her house by descent as her only heir at law.
Are the ring, the guns, and the house separate or community property?
ANSWER: If they still exist and there are no other intervening facts, they are your separate property.
The characterization of assets and debts, and the proof therof, is not always so cut and dry and can sometimes be the basis for a trial on financial issues. Additionally, spouses can make claims for the exertion of the spouses’ time, toil, and talent, with respect to businesses and assets sought to be confirmed or divided in a divorce context.
The Texas Supreme Court laid out a non-exhaustive list of factors to consider when dividing an estate between the spouses in its 1981 decision in the case of husband and wife Murff v. Murff.
The eponymous 11 “Murff factors” a trial judge should consider when looking at your spreadsheet are as follows:
- 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.
- Education of the spouses.
- Relative physical condition of the spouses.
- Relative financial condition of the spouses.
- Differences in the size of each spouse's separate estate.
- The nature of the property to be divided.
- Fault in the break-up of the marriage.
- Attorneys’ fees of the parties.
The weight the court assigns to any given factor is within the discretion of the court.