Monday, April 28, 2014

My husband and I are divorcing and I think I deserve to get most of the property.

Alright then.  The first thing to understand is that the court begins with the idea that your property should be divided "fairly and equitably".  (Keep in mind this DOES NOT necessarily mean 50/50).  So if you want more than fair, it becomes your job to prove to the court that you deserve more than fair.

You likely need to tell the court in your first paperwork (called a "Petition") that you are claiming one of the 28 different factors that the court can consider in deciding whether to grant a disproportionate division of what you earned during the marriage (a.k.a. "community property").  You will have to plead that one of these things changed the normal presumption of equal division to your favor.  You need justify why you should get the lion's share of the property by claiming one or more of the following:

1.  Husband was at fault in the breakup of the marriage;
2.  You would have received benefits from the continuation of the marriage;
3.  He earns much more than you;
4.  Your health is worse than his;
5.  You got the children so you should get more property to help pay for them;
6.  Your children's needs are great;
7.  Your education is less than his and/or your prospects for the future are lower;
8.  You are less employable than him;
9.  There is a lot of marriage debt;
10.  The division of property will put more tax burden on you;
11.  The differences in you ages is great;
12.  The earning power, business opportunities and abilities favor your husband;
13.  You need future support;
14.  The kind of property to be divided means it would be fair for you to get more;
15.  Your husband wasted your community property;
16.  You husband doesn't deserve any credit for temporary support he paid you;
17.  Your husband used community funds to pay for out of state property;
18.  Your husband decreased your community property because he gave unreasonably valuable gifts during the marriage;
19.  You can show that your efforts (time, talent, labor) unduly increased your husband's separate property (which the court has no power to divide) and you should be compensated;
20.  Your husband gave so much of your community property away to his separate estate or to the children that it was unreasonable and should be compensated;
21.  The community estate should be compensated;
22.  Your husband is expecting a large inheritance;
23.  You should have more money to pay for attorney's fees;
24.  You used up your separate property to create community property;
25.  The size and nature of your separate property is much less than his;
26.  You disproportionately created community property by your own efforts, whereas he did not;
27.  He committed fraud (lied) that put you in a worse financial position than you otherwise would be in;
28.  His actions amounted to fraud, even if he didn't technically lied that put you in a worse financial position than you otherwise would be in.

These are called the "Murff Factors" after the original case:  Murff v. Murff, 615 S.W.2d696,698 (Tex.1981).

It should be noted that requested a disproportionate share of the community property will eventually require you to prove your allegations.  Claiming something is easy.  Proving it is another matter.  If you want a disproportionate property division, you probably will need an experienced lawyer to help you with this.