What is a Disproportionate Share in a Divorce?

In Texas, property is divided in a “just and right manner.” When people hear this, they automatically think that means property is divided 50/50. However, that is not always the case. In some instances, there may be factors that lead a party to take more than a 50/50 share of the community estate.

The community estate is everything that the party’s own from the date of their marriage to the date of their divorce. The community estate does not include separate property. Separate property is property that was received by gift or inheritance during the marriage or any property that belonged to a party before they were married.

Factors That Could Impact Your Share of the Community Estate

Obtaining a fault-based divorce can secure an award of a disproportionate share of the community property. But there are also other factors the Court can look to in order to determine if one party should obtain more of the community property, including:

• The nature of the property
• Income disparity
• Business opportunities
• Relative financial conditions and obligations
• Education
• Physical condition
• Age
• Fault in the break-up
• Fraud
• Waste
• The benefit the innocent spouse would have received if the marriage continued
• The size of the separate estates
• A probable need for future support

Showing Why You Need a Disproportionate Share

With all of these factors, you must show the Court why you need a disproportionate share. It’s not enough to just say, “my spouse is more educated than I am so I need more.” You must show how this impacts your life and the ability to provide for yourself in the future.

For example, maybe one spouse owns a business and has the opportunity to grow the business in the future while the other spouse stayed home the entire marriage. If the spouse who owns the business will be able to double his/her business income in a year, then maybe the spouse who stayed home should take more of the community estate now. Or maybe there is a disabled child of the marriage, and one parent will have to stay home and take care of the child while the other parent works after the divorce. The parent staying home may need more of the community now because they will always be taking care of the child.

What Percentage Does the Court Award?

Practically speaking, when the Court awards a disproportionate share, they not going to award one spouse 100% and the other spouse 0%. That just does not happen in family court (though it does not mean it is impossible). We usually don’t even see anything greater than a 60/40 split. In most cases however, we see the division aligning more with a 51/49 or 52/48 split. For every case, this can be different depending on the facts and assets. It is important too to keep in mind how much the overall community estate is worth.

For example, if your community estate is only $100,000, a 50/50 split means Spouse One takes $50,000 and Spouse Two takes $50,000. Let’s say the Court awards a 52/48 split in favor of Spouse One. Spouse One would take $52,000 and Spouse Two takes $48,000. The difference and what we are fighting over is $2,000. However, if your community estate it $1,000,000 then a disproportionate share is a lot greater. In the same scenario above, a 50/50 split would mean that each spouse receives $500,000. However, if there was a 52% / 48% split, Spouse One takes $520,000 and Spouse Two takes $480,000. Instead of fighting over $2,000 above, we are now fighting over $20,000.

Obtaining a disproportionate share can oftentimes be tricky, but all of the factors can be tailored to meet your individual needs. It is best to speak with an attorney on how each factor can specifically impact you and what it would take to achieve a disproportionate share.