Understanding “Just And Right”

gavel splitting a paper cutout of a family.

Although Texas is a community property state, that does not mean that everything is divided 50/50. Rather, the court must divide the parties in a manner that it deems “just and right, having due regard for the rights of the parties and any children of the marriage.” Although every divorce is unique, the court must follow certain guidelines when determining this division of assets.

The “marital estate” is actually made up of three estates: each party’s separate estate and the community estate. Once all the property owned by the parties at the time of divorce is identified, the court will characterize the property as either separate or community. The court initially presumes that all of the property is community. If a party claims that certain property is separate, he or she must provide clear and convincing evidence to support that claim. In the final decree, the court will confirm which property is separate property and divide the community property between the parties.

While there is no rule that the property be divided 50/50, absent other circumstances, the courts will generally try to get close to an equal division of assets. But, this does not mean that each bank account will be divided in half. Rather, the parties will provide the court with values of all the assets in the community estate, including bank accounts, retirement accounts, houses and other real property, cars and boats, and household items. Generally, only the larger items are specifically valued, while the “household items” are lumped together with a single rough estimate for the total value of those things all together. The parties also need to list all of their debts, including mortgages, car loans, tax debts, and credit card balances. All the values are then added up (and the debts are subtracted) to determine the total value of the community estate. When making a just and right division of the community estate—again, absent other circumstances—the goal is to divide up the value of the estate relatively equally. So, this might mean that one party gets a lot of “things” while the other gets a lot of money. Many factors influence how to reach this final division.

When there is evidence of bad acts in the marriage—such as adultery, cruelty, waste of assets, or fraud—the court may decide that a 50/50 division is not just and right. The court may decide that one party’s bad acts justify giving the other spouse 55% or 70% or even 90% of the community estate. However, divorce happens because two people are no longer treating each other well, so not every bad act has the same evidentiary weight with the trial court.

One way to avoid bringing all of these facts into the courtroom is to reach a settlement agreement with your spouse. Agreeing to a division of assets is often less expensive, faster, and less stressful than going through a full-blown trial. But sometimes, agreements cannot be reached, and a trial may be unavoidable.

For more guidance and to discuss a strategy that is best for your unique set of facts, contact us for a consultation.

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