AVOIDING THE EQUAL PROPERTY DIVISION: WHEN EQUITABLE DOESNT MEAN EQUAL

CHARLA BRADSHAW CONNER Gregory & Conner, P.C. 303 N. Carroll Blvd., Suite 100 Denton, TX 76201 940-387-1600 charla@dentonfamilylaw.com

31

ST

State Bar of Texas ANNUAL ADVANCED FAMILY LAW COURSE August 8-11, 2005 Dallas CHAPTER 46

CHARLA BRADSHAW CONNER

Gregory & Conner, P.C.
303 N. Carroll Blvd., Suite 100 Denton, TX 76201 (972) 434-3828 / (940) 387-2173 fax charla@dentonfamilylaw.com EDUCATION/LICENSE/CERTIFICATION J.D. Southern Methodist University School of Law, 1993 B.S. Texas Woman's University, Denton, Texas and Candidate for M.S., Marriage and Family Therapy (All but thesis) State Bar of Texas, since 1993 Texas Supreme Court, since 1993 U.S. Supreme Court, since 1998 Board Certified in Family Law by Texas Board of Legal Specialization Since 2000 Credentialed by the Texas Mediator Credentialing Association Since 2004 Certified Mediator Collaborative Lawyer, Collaborative Law Institute of Texas PROFESSIONAL ACTIVITIES Texas Super Lawyer for 2003 and 2004 (Texas Monthly) State Bar of Texas Family Law Council April, 2005 to present Texas Academy of Family Law Specialists Treasurer (Term begins September 2005) State Bar of Texas Family Law Section State Bar Affairs Committee (2004 to present) Texas Academy of Family Law Specialists Director (2002 to 2005) Texas Academy of Family Law Specialists Newsletter Editor of the Family Law Forum (2002-2005) Texas Academy of Family Law Specialists Delegate for the Family Law Council of Community Property States Symposium (2002-2005) 1997, 1998, 1999 Texas Family Law Council Checklists Committee for Checklist Publication Volumes I and II 1998 to present Texas Family Law Practice Manual Form Book Committee and contributing author PROFESSIONAL AFFILIATIONS Collaborative Law Institute of Texas Denton County Bar Association Tarrant County Bar Association College of the State Bar of Texas Texas Family Law Foundation State Bar of Texas, Family Law Section 1997 Texas Family Law Council Planning Committee for 1997 Advanced Family Law Course LECTURES AND PUBLICATIONS 2005 Advanced Family Law Course: Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal 2005 Family Law Council of Community Property States 2004 Advanced Family Law Course: Retirement: QDROs for Defined Benefit and Contribution Qualified Plans under ERISA 2004 TAFLS Trail Institute: Twenty-Five Essential Factors When Drafting or Reviewing QDROs 2004 Family Law Council of Community Property States: Business Valuation 2003 Family Law Practice Seminar, University of Houston Law Center: Retirement: QDROs for Qualified Plans under ERISA (including using QDROs for Child Support) 2003 Advanced Family Law Course: Retirement: QDROs for Qualified Plans under ERISA (including using QDROs for Child Support)

2002 Advanced Family Law Course: ERISA Retirement Plans: An Analysis of the New Texas Family Law Practice Manual QDRO Forms and QDRO Drafting Tips 2001 Advanced Family Law Course: Handling ERISA Retirement Plans: An Overview and Explanation of the Texas Family Law Practice Manual QDRO Forms and Drafting tips for Alternative Clauses 2000 Advanced Family Law Course: Retirement Plans: What to Do When No QDRO is Honored 1999 Family Law Practice Seminar, University of Houston Law Center: QDROs and Retirement Benefits 1999 Advanced Family Law Course: Expert Witness Workshop 1998 Advanced Family Law Course: "Retirement Overview and a Walk Through the QDRO" 1998 Family Law Practice Seminar, University of Houston Law Center: "QDROs What You Dont Know Can Hurt You" 1997 Advanced Family Law Course: "Retirement, Pensions and that Ugly Word...QDROs" 1996 Distinctive Lifestyles of Northeast Tarrant County: New Alimony Law in Texas Adds Protection, March/April 1996 edition 1995 Advanced Family Law Course: "QDROs and Checklists" CIVIC ACTIVITIES AND AFFILIATIONS Texas Paint Horse Club Board of Directors Recording Secretary and Vice President Past Director for the Texas World Youth Team for the American Paint Horse Association Mayor Pro Tem for City of Westlake (May, 1997 - May, 1999) Chairman of Planning & Zoning Committee for City of Westlake (1995-1997)

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

TABLE OF CONTENTS I. II. INTRODUCTION................................................................................................................................................... 1 STATUTORY LAW ............................................................................................................................................... 1

III. CASE LAW ............................................................................................................................................................ 1 A. The Landmark Case: Murff v. Murff................................................................................................................ 1 B. Factors to Consider.......................................................................................................................................... 2 1. Fraud........................................................................................................................................................ 2 2. Fault/NoFault........................................................................................................................................... 5 3. Length of Marriage.................................................................................................................................. 7 4. Disparity of Earning Power ..................................................................................................................... 7 5. Custody of Children................................................................................................................................. 7 6. Tax Consequences and Liabilities ........................................................................................................... 8 7. Size of Separate Estate ............................................................................................................................ 9 8. Benefits the Innocent Spouse May Have Derived From the Continuation of the Marriage.................... 9 9. Health of the Spouses ............................................................................................................................ 10 10. Age of the Spouses ................................................................................................................................ 10 11. Education and Future Employability ..................................................................................................... 10 12. Need for Future Support ........................................................................................................................ 10 13. Foreign Realty ....................................................................................................................................... 11 14. Credit for Temporary Alimony Paid...................................................................................................... 11 15. Wasting and Concealing of Community Assets .................................................................................... 12 16. Attorneys Fees...................................................................................................................................... 12 17. Nature of the Property ........................................................................................................................... 12 18. Debts and Liabilities.............................................................................................................................. 13 19. Reimbursement...................................................................................................................................... 13 C. Case Law Upholding Disproportionate Awards............................................................................................ 14 1. Garcia v. Garcia..................................................................................................................................... 14 2. Lucy v. Lucy.......................................................................................................................................... 14 3. Loaiza v. Loaiza .................................................................................................................................... 14 4. In re Marriage of Becerra ...................................................................................................................... 14 5. Phillips v. Phillips.................................................................................................................................. 15 6. Sprick v. Sprick ..................................................................................................................................... 15 7. Kimsey v. Kimsey ................................................................................................................................. 15 8. Abernathy v. Fehlis................................................................................................................................ 15 9. Tschirhart v. Tschirhart ......................................................................................................................... 15 10. Matter of Marriage of DeVine............................................................................................................... 15 11. Finch v. Finch ........................................................................................................................................ 15 12. Falor v. Falor ......................................................................................................................................... 16 13. Faram v. Gervitz-Faram ........................................................................................................................ 16 14. Golias v. Golias ..................................................................................................................................... 16 15. Frommer v. Frommer ............................................................................................................................ 16 16. Vandiver v. Vandiver ............................................................................................................................ 16 17. Morrison v. Morrison ............................................................................................................................ 17 18. Conroy v. Conroy .................................................................................................................................. 17 19. Kluck v. Kluck....................................................................................................................................... 17 20. Eikenhorst v. Eikenhorst........................................................................................................................ 17 21. Oliver v. Oliver...................................................................................................................................... 17 22. Rafidi v. Rafidi ...................................................................................................................................... 17 23. Rutledge v. Rutledge ............................................................................................................................. 17 24. Huls v. Huls ........................................................................................................................................... 18 25. Roberts v. Roberts ................................................................................................................................. 18 26. Gaston v. Gaston.................................................................................................................................... 18 27. Hourigan v. Hourigan ............................................................................................................................ 18 28. Haulsler v. Haulsler ............................................................................................................................... 18
i

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40.

Whittenburg v. Whittenburg.................................................................................................................. 18 Waggener v. Waggener ......................................................................................................................... 18 Duncan v. Duncan ................................................................................................................................. 18 Bokhoven v. Bokhoven ......................................................................................................................... 18 Vannerson v. Vannerson........................................................................................................................ 18 Zamora v. Zamora ................................................................................................................................. 18 Massey v. Massey.................................................................................................................................. 18 Goren v. Goren ...................................................................................................................................... 19 Walston v. Walston................................................................................................................................ 19 In re Marriage of Rice ........................................................................................................................... 19 Zorilla v. Wahid..................................................................................................................................... 19 Magill v. Magill..................................................................................................................................... 19

IV. PLEADINGS BE SAFE AND PLEAD IT SO YOU CAN PROVE IT............................................................. 19 V. ARGUMENTS AND IDEAS................................................................................................................................ 20 A. Know Your Judge and Be Willing to Persuade Your Judge If You Have To ............................................... 20 B. Know your Assets and Ask for the Best........................................................................................................ 20 C. Winning the Battle and Losing the WarThe Cost of Litigation................................................................. 20 D. Advocate Your Arguments ............................................................................................................................ 21 1. Adultery ................................................................................................................................................. 21 2. Disparity of Income ............................................................................................................................... 22 3. Difference in the Size of the Separate Estates ....................................................................................... 22 4. Custody of the Children......................................................................................................................... 23 VI. TOOLS AND TECHNIQUES .............................................................................................................................. 23 A. Proposed Division ......................................................................................................................................... 23 B. Financial Planner/Financial Expert ............................................................................................................... 23 C. Charts and Graphs ......................................................................................................................................... 23 D. Witnesses and Mental Health Professionals.................................................................................................. 23 E. Scorecard Argument...................................................................................................................................... 24 VII. CONCLUSION ..................................................................................................................................................... 25

ii

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

AVOIDING THE EQUAL PROPERTY DIVISION: WHEN EQUITABLE DOESNT MEAN EQUAL
I. INTRODUCTION This article is designed to help you be a more persuasive advocate in cases where you are arguing for a disproportionate division of the community estate. This article will provide a full reference for case law and statutory law on the subject and would be an excellent resource for your trial notebook. When trying property cases, we seem to fall into the same routine of preparing our property caseswe think we know what our judges will do and we do little more than recite the factors for the court to consider in making a disproportionate division. We must bring life to the case. We must give the judge reasons to give us a disproportionate division. We often fail to truly advocate and persuasively argue our disproportionate request. This article provides you full references, ideas, insights to argue effectively, and the inspiration to be more creative, more insightful and more persuasive when you ask the court for a disproportionate division of the community estate. I want to thank Kevin Fuller for his generosity in allowing me to reference his article on this subject, Getting the Biggest (Or the Best) Piece of the Community Pie: Factors, Strategies, and Techniques for Disproportionate Divisions and How to Effectively Prove Them Up, given at the 2001 Advanced Family Law Course. II. STATUTORY LAW The statutory authority for a disproportionate division of community property is Texas Family Code (hereinafter the Code) section 7.001. This brief but important section of the Code provides, in its entirety as follows: 7.001 General Rule of Property Division. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. [emphasis added] Section 7.001 of the Code is the most important section in Title 1 of the Code. The origin of this statute dates back to 1841 and the mandate has consistently been for the courts to divide the property in a manner that is just and right, not necessarily 50/50 or equally. The advocate must argue the facts and circumstances so as to convince the court that justice and rightness would not be served by an equal division and that to award an
1

equal division, the court would have to ignore what is just and right, and case law. III. CASE LAW There is an abundance of case law upholding and supporting disproportionate divisions of community property for a variety of reasons. Following is a list of factors trial courts have used to award a disproportionate division of community property and case law to support these factors. Further, I have provided a list of cases that have supported disproportionate divisions of community property. The most important thing to remember in trying your case is to develop arguments to persuade the trial court that to award an equal division in your case would be to ignore the equities and justice of the case, and Texas case law. A. The Landmark Case: Murff v. Murff In the legendary case of Murff v. Murff, 615 S.W.2d. 696 (Tex. 1981), the Texas Supreme Court set out the most important factors for a court to consider in making a just and right division of the community property. These 11 factors are as follows: 1. The disparity of incomes or earning capacities of the spouses 2. The spouses capacities and abilities 3. Benefits which the party not at fault would have derived from a continuation of the marriage 4. Business opportunities of the spouses 5. Education of the spouses 6. Relative physical conditions of the spouses 7. Relative financial conditions of the spouses 8. Differences in the size of each spouses separate estate 9. The nature of the property to be divided 10. Fault in the break up of the marriage 11. Attorneys fees of the parties In Murff, the Texas Supreme Court explained: The trial court in a divorce case has the opportunity to observe the parties on the witness stand, determine their credibility, evaluate their needs and potentials, both social and economic. As the trier of fact, the court is empowered to use its legal knowledge and its human understanding and experience. Although many divorce cases have similarities, no two of them are exactly alike. Mathematical precision in dividing property in a divorce is usually not possible. Wide latitude and discretion rests in these trial courts and that discretion should only be disturbed in the case of clear abuse. Murff, at 700.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

B. 1.

Factors to Consider Fraud In Sprick v. Sprick, 25 S.W.3d 7 (Tex.App.El Paso 1999, pet. denied), the court held that: (1) there was sufficient evidence that an 81-year-old friend of husband's family, over whose finances husband had power of attorney, made a $118,900 unsecured loan to the community, to support an implied finding that the indebtedness did not constitute a fraud on the community; (2) wife could not overcome the presumption that the loan was on the credit of community; but (3) award of 76.6% of the net assets of the community property estate to wife was equitable at divorce. Justice Ann McClures concurrence in the Sprick case is an excellent explanation on the concept of fraud and is quoted as follows: Creative and inventive theories of recovery abound for economic torts committed against the community estate. These range from waste, depletion of assets, the community opportunity doctrine and its inverse partner, the community jeopardy doctrine [FN3] to the generic tort of fraud, which encompasses a number of varieties such as breach of fiduciary duty, fraudulent conveyance, excessive gifts to children, and community funds expended on paramours, just to name a few. The intermediate courts have not been consistent in their determination of whether an independent economic tort is actionable between spouses for damages to the community estate. It now appears that the Supreme Court has not been entirely consistent either. [FN3] The community opportunity doctrine derives from the corporate opportunity doctrine and stands for the proposition that a spouse has an obligation to maximize the community estate by taking advantage of an opportunity to invest in a lucrative venture using community, rather than separate, funds. The community jeopardy doctrine operates in the reverse and suggests that a spouse also has an obligation to protect the community estate from risky pursuits by investing separate, rather than community, funds. As might be expected, whether an investment is potentially lucrative or risky is easier to discern in hindsight and is ordinarily fact specific.

Fraud as an Economic Tort Fraud in the divorce context, as in other civil litigation, may be actual or constructive. Actual fraud is predicated upon the intent to deceive. The elements are: (1) that a material representation was made; (2) that it was false; (3) that when the speaker made it, he knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon it; and (6) that he suffered thereby. Stone v. Lawyers Title Insurance Corp., 554 S.W.2d 183, 185 (Tex.1977). "[C]onstructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests." Archer v. Griffith, 390 S.W.2d 735, 740 (Tex.1964). In other words, intent is irrelevant. Because of the confidential relationship between a husband and wife, the marital partnership is fiduciary in nature. Matthews v. Matthews, 725 S.W.2d 275, 279 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). A breach of this fiduciary duty is frequently termed a "fraud on the community." In re Marriage of Moore, 890 S.W.2d 821, 827 (Tex.App.-- Amarillo 1994, no writ). Generally speaking, the allegation is one of constructive rather than actual fraud: Any such conduct in the marital relationship is termed fraud on the community because, although not actually fraudulent, it has all the consequences and legal effects of actual fraud in that such conduct tends to deceive the other spouse or violate confidences that exist as a result of the marriage. Id. at 827. Constructive fraud includes actions of one spouse in unfairly disposing of or encumbering the other spouse's interest in community property or unfairly incurring community indebtedness without the other spouse's knowledge or consent. Massey v. Massey, 807 S.W.2d 391, 402 (Tex.App.-Houston [1st Dist.] 1991), writ denied, 867 S.W.2d 766 (Tex.1993). In the absence of fraud, a spouse has the right to control and dispose of community property subject to his sole management. [FN4] Id. at 401, citing Mazique v. Mazique, 742 S.W.2d 805, 807 (Tex.App.--Houston [1st Dist.] 1987, no writ). Although the managing spouse need not obtain approval or consent for
2

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

dispositions made of special community property, the fiduciary relationship between husband and wife requires that a spouse's disposition of special community property be "fair" to the other spouse. Massey, 807 S.W.2d at 402, citing Horlock v. Horlock, 533 S.W.2d 52, 55 (Tex.Civ.App.--Houston [14th Dist.] 1975, writ dism'd). The managing spouse carries the burden of establishing that the disposition of property was fair. Id. FN4. During marriage, each spouse has the sole management, control, and disposition of the community property that the spouse would have owned if single, including personal earnings, revenue from separate property, recoveries for personal injury, and the increase and mutations of, and the revenue from, all property subject to the spouse's sole management, control, and disposition. Tex. Fam. Code Ann. 3.102(a). Community property subject to a spouse's sole management and control is sometimes referred to as "special community property," particularly in older case law. All other community property is subject to the joint management, control and disposition of the spouses unless the spouses provide otherwise by power of attorney in writing or other agreement. Tex. Fam. Code Ann. 3.102(c). The Supreme Court has recently reiterated that Texas recognizes the concept of fraud on the community, which it has defined as a wrong committed by one spouse which may be considered by the trial court in its division of the community estate and which may justify a disproportionate division. Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex.1998). It is not, however, an independent tort giving rise to a cause of action between spouses. Id. at 586. Nor may it give rise to a recovery for punitive damages, inasmuch as "recovery of punitive damages requires a finding of an independent tort with accompanying actual damages." Schlueter, 975 S.W.2d at 589, quoting Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex.1995). Instead, the claim of fraud on the community is a means to an end, seeking either to recover specific assets wrongfully conveyed or to obtain a greater share of the community estate upon divorce as compensation for the loss of community property. Schlueter, 975 S.W.2d at 588, quoting Belz v. Belz, 667 S.W.2d 240, 247
3

(Tex.App.--Dallas 1984, writ ref'd n.r.e.). Where the economic tort depletes the community estate so as to leave insufficient property available to the wronged spouse, the courts may impose a money judgment in order to achieve an equitable division. Schlueter, 975 S.W.2d at 588, citing Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). The money judgment serves to recoup the value of the wronged spouse's share of the estate which has been lost through the fraud. Schlueter, 975 S.W.2d at 588, citing Mazique v. Mazique, 742 S.W.2d 805, 808 (Tex.App.-Houston [1st Dist.] 1987, no writ). "Because the amount of the judgment is directly referable to a specific value of lost community property, it will never exceed the total value of the community estate." Schlueter, 975 S.W.2d at 588. On the heels of Schlueter, the Court was presented with some rather egregious facts in Vickery v. Vickery, 999 S.W.2d 342 (Tex.1999)(J. Hecht, dissenting). The underlying court of appeals' opinion was unpublished. The Supreme Court denied the petition for review, with Justice Hecht dissenting from the denial in a published opinion which incorporates as an appendix both the intermediate court's opinion on the merits and Justice Andell's dissent from that court's denial of rehearing en banc. At issue was Mrs. Vickery's recovery in a bill of review proceeding. The jury found Mr. Vickery, himself an attorney, liable for fraud and breach of fiduciary duty and assessed Mrs. Vickery's damages at $6.7 million for loss of marital property and $1.3 million for mental anguish, together with $1 million in punitive damages. The jury also found that Mrs. Vickery's attorney breached her fiduciary duty, resulting in damages of $100,000 in lost marital property and $350,000 in mental anguish damages. As Justice Hecht notes in his dissent, "[a]pplying Schlueter would require that the actual and punitive damages awarded Mrs. Vickery against her former husband be reversed and the case remanded to the district court to reconsider what division of the community is just and right. The district court may consider Mr. Vickery's 'dishonesty of purpose or intent to deceive' and 'the heightened culpability of actual fraud' as found by the jury." The fact that the Supreme Court, by denying review, allowed the actual and punitive damages to stand gives me some

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

concern as to what the current state of the law is for economic torts committed against the community estate. Id. At 14. In Lucy v. Lucy, 162 S.W.3d 770 (Tex.App.El Paso 2005, no writ), the court considered whether the trial court mislabeled the property theory of recovery: Is it error to compensate the community estate for economic torts committed by a spouse simply because the court labeled the relief as "reimbursement?" The court stated: Texas recognizes the concept of fraud on the community which the trial court may consider in rendering a disproportionate division. Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex.1998), citing Belz v. Belz, 667 S.W.2d 240, 247 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). A claim of fraud on the community is a means either to recover specific property wrongfully conveyed or to obtain a greater share of the community estate upon divorce in order to compensate the wronged spouse for her lost interest in the community estate. Belz, 667 S.W.2d at 24647. A trial court may also award a money judgment to one spouse against the other in order to achieve an equitable division of the community estate. Schlueter, 975 S.W.2d at 588, citing Murff, 615 S.W.2d at 699 (allowing money judgment against husband in division of community property where he had substantial sums in savings before separation that had disappeared by the time of trial). Because the amount of the judgment is directly referable to a specific value of lost community property, it will never exceed the total value of the community estate. Id. A wronged spouse should not suffer simply because the other spouse has depleted the community such that there is not enough left to effect a just and right division. Id. Joan asked the court for a disproportionate division, including a money judgment if necessary, to compensate the community estate for Paul's fraudulent conduct. Schlueter also recognized that wasting community assets may give rise to a similar claim. Schlueter, 975 S.W.2d at 589. Mrs. Schlueter alleged that her husband had, without her knowledge or consent, wrongfully depleted the community assets. "Such behavior is properly considered when dividing a community estate." Id. In this context, we review the evidence. Paul admitted receiving the rental payments and cashing the checks. He testified that he
4

would use the funds to pay the mortgage and for incidental living expenses. While he claimed to have given Joan a portion of the money, Joan testified that he kept the cash and didn't give her any. Paul acknowledged that the income was community property, but complained that if his expenditures did provide some basis for reimbursement, then the reimbursement should be limited to net income. Penick, 783 S.W.2d at 197. [FN4] FN4. He alleged that the income totaled $36,300 rather than $43,200 and that he was entitled to a deduction for maintenance expenses of at least $2,000 and mortgage payments of $17,400 ($580 x 30 mos.), which would equal reimbursement of $16,900. With regard to the bank account, Paul complains that the trial court failed to explain its calculation, merely stating that the award was based on the evidence. He argues that Joan admitted the account was community property and that she was not entitled to reimbursement absent a tracing of her separate property funds in the account. He also claims that she did not show that Paul's separate estate benefited at the expense of her separate property or the community estate. In each of these instances, Paul acknowledges the conflicting evidence. Nevertheless, the trial court as the trier of fact was the sole judge of the credibility of the evidence, what weight was to be assigned to it, and how to resolve inconsistencies. Carrasco, 623 S.W.2d at 772. The court obviously disregarded Paul's testimony and believed Joan's. Paul's underlying argument is that Joan was not entitled to "reimbursement" on that basis or that she failed to establish the amount of the offsetting benefit to the wronged estate. The findings are limited to characterization and value; they do not encompass the factors which the trial court may have considered in making a disproportionate division. We conclude that the evidence supports a disproportionate division and that Paul's conduct was a factor which the trial court could rightly consider. Simple mathematical calculations derived from the findings of fact reveal that the trial court valued the community estate at $100,922. Without the equalizing judgment, the court effectuated roughly a 55%-45% division in favor of Paul. Imposition of the judgment results in a 73%-

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

27% division in favor of Joan. We conclude that the constituent elements are properly aligned: the pleadings support the evidence, the evidence supports the findings of fact, and the findings support the judgment. We find no abuse of discretion in attaching a misnomer to the remedy employed. Finding no abuse of discretion, we overrule both issues for review and affirm the judgment of the trial court. In determining the division of community property, the court may consider proof of one spouse's dishonesty or intent to deceive, constituting actual fraud, regarding the community assets, Schleuter v. Schleuter, 975 S.W.2d 584 (Tex. 1998), and may also consider evidence of one spouse's constructive fraud in transactions involving community property, taking into account Massey v. Massey, 807 S.W.2d 391 (Tex. App.Houston [1st Dist.] 1991, writ denied): a. the size of the property disposed of in relation to the total size of the community property the adequacy of the remaining estate to support the other spouse the relationship of the parties involved in the transaction

b. c.

Unfairly disposing of the other spouse's community property results in a presumption of constructive fraud. Connell v. Connell, 889 S.W.2d 534 (Tex. App. San Antonio 1994, writ denied). However, the mere fact that a community property business venture lost money because of the acts of one spouse, even if it ended in bankruptcy, does not constitute fraud. Connell v. Connell, 889 S.W.2d 534 (Tex. App. San Antonio 1994, writ denied); see also Andrews v. Andrews, 677 S.W.2d 171 (Tex. App. Austin 1984, no writ) (a spouse's good faith, but unwise, investment of community funds resulting in losses to the community estate does not justify an unequal distribution of the remaining community property upon divorce). Additionally, the trial court may take into account a spouse's dissipation of the estate. See Massey v. Massey, 807 S.W.2d 391 (Tex. App.Houston [1st Dist.] 1991, writ denied) (based on jury verdict that husband committed constructive fraud, trial court was entitled to award wife equalization for property depleted unfairly from community estate); Reaney v. Reaney, 505 S.W.2d 338, 340 (Tex.Civ.App.Dallas 1974, no writ) (court took into account the husband's dissipation of approximately $53,000 of community assets when dividing the estate); Pride v. Pride, 318 S.W.2d 715, 718 (Tex.Civ.App.Dallas 1958, no writ) (trial court rendered a money judgment against the husband for the wife's share of $3,000 he concealed).
5

Fault/NoFault Generally The court may consider evidence of one spouse's fault contributing to the breakup of the marriage, even in an action in which insupportability is the only ground for divorce pled, Velasco v. Haberman, 700 S.W.2d 729 (Tex. App. San Antonio 1985, orig. proceeding); In Re Marriage of Jackson, 506 S.W.2d 261 (Tex. Civ. App. Amarillo 1974, writ dismd); See also Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App. Corpus Christi 1999, no pet. h.). The courts however may also decline to consider such evidence. Guttierez v. Guttierez, 791 S.W.2d 659 (Tex. App. San Antonio 1990, no writ); Massey v. Massey, 807 S.W.2d 391 (Tex. App.Houston [1st Dist.] 1991, writ denied) (court may consider fault, but is not obligated to do so). The court may consider the fault of one of the parties in its division whether the divorce is granted solely on fault grounds, or on both fault and no-fault grounds; and further, when a divorce is granted on the basis of fault, the trial court may, though it need not, consider the fault in breaking up the marriage as a factor in making a property division which favors one spouse. Young v. Young, 609 S.W.2d 758 760-62 (Tex. 1980); Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Hourigan v. Hourigan, 635 S.W.2d 556, 556-57 (Tex. App.El Paso 1981, no writ). In addition, a court has the discretion to hear evidence of fault if it decides to hear the case on no-fault grounds. Vautrain v. Vautrain, 646 S,W.2d 309, 312 (Tex. App.Fort Worth 1983, writ dismd). In Clay v. Clay, 550 S.W.2d 730 (Tex.Civ.App.Houston [1st Dist.] 1977, no writ), notwithstanding a jury finding of cruel treatment, the trial court was authorized to enter a divorce under no fault provisions. In Phillips v. Phillips, 75 S.W.3d 564 (Tex.App. Beaumont 2002, no pet. h.), the trial court awarded a disproportionate amount of the community estate to Nancy. Nancy contends the trial court properly awarded her approximately 60% of the community estate with the remaining 40% of the community estate going to James. In his brief, James contends that the division was even more lopsided in favor of Nancy and he pointed out that he was awarded a mere 23.5% while Nancy was actually awarded 76.5%. The trial court entered a finding that James was at "fault" for the breakup of the marriage and awarded Nancy a disproportionate share of the community estate. The court went on to state that even where fault is properly pleaded and proved, an unequal division of the community estate may not be awarded to punish the party at fault. The court stated the following: a trial court has broad discretion in dividing the community estate in a divorce action. Schlueter, 975 S.W.2d at 589; Murff, 615 S.W.2d at 698. The trial court exercises

2. a.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

this discretion by considering many factors. Id. at 699. Excluding the "fault" factor, the nonexclusive list includes the following: (1) the spouses capacities and abilities, (2) business opportunities, (3) education, (4) relative physical conditions , (5) relative financial conditions and obligations, (6) disparity of ages, (7) sizes of separate estates, (8) the nature of the property, and (9) disparity in earning capacities or of incomes. Id. The trial court may also consider whether one of the parties to the marriage has wasted community assets. See Schlueter, 975 S.W.2d at 589; Beard v. Beard, 49 S.W.3d 40, 66 (Tex.App.-Waco 2001, pet. denied). The fact that there are ten "non-fault" factors, as well as the fact that the list is nonexclusive, should continue to give a trial court very broad discretion in making its "just and right" division notwithstanding our holding that where insupportability is the sole ground pleaded, a trial court may not factor in "fault" in its "just and right" division of the community estate in order to award a disproportionate quantity of the community estate to one spouse. Nevertheless, even if, as in the instant case, the petitioner has failed to both plead and prove a traditional "fault" ground for dissolution of the marriage resulting in the trial court's erroneously attributing "fault in the breakup of the marriage" to the respondent, said respondent must still demonstrate that the trial court abused its discretion in making its ultimate "just and right" division of the community estate. See Tate v. Tate, 55 S.W.3d 1, 6 n. 3 (Tex.App.-El Paso 2000, no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 592 n. 3 (Tex.App.-El Paso 1998, no pet.). This is so because the trial court is still permitted to consider any other "non-fault" factor(s) in awarding a disproportionate amount of the community estate to one spouse. Id. At 572. Cruel Treatment The court may also consider a spouses cruel treatment of the other spouse in dividing the property, even though the court grants the divorce on the no-fault ground of insupportability. Barnard v. Barnard, 133 S.W.3d 782 (Tex.App.Fort Worth 2004, pet. denied). In In re Marriage of Rice, 96 S.W.3d 642 (Tex.App.Texarkana 2003), the court gave an excellent explanation of the present state of the law on cruel treatment and stated the following: Although infrequently used since the introduction of no-fault divorce, a Texas
6

court may still grant a divorce on the ground of cruel treatment. Henry v. Henry, 48 S.W.3d 468, 473 (Tex.App.-Houston [14th Dist.] 2001, no pet.). A spouse's conduct rises to the level of cruel treatment when his or her conduct renders the couple's living together insupportable. Id. (citing Tex.Fam.Code Ann. 6.002 (Vernon 1998); Finn v. Finn, 185 S.W.2d 579, 582 (Tex.Civ.App.-Dallas 1945, no writ)). "Insupportable" means "incapable of being borne, unendurable, insufferable, intolerable." Id. (citing Cantwell v. Cantwell, 217 S.W.2d 450, 453 (Tex.Civ.App.-El Paso 1948, writ dism'd)). Mere disagreements or trifling matters will not justify granting a divorce for cruelty. Shankles v. Shankles, 445 S.W.2d 803, 807 (Tex.Civ.App.-Waco 1969, no writ). If, for instance, the complaining spouse suffers only nervousness or embarrassment, a trial court may not grant the divorce on the ground of cruelty. Golden v. Golden, 238 S.W.2d 619, 621 (Tex.Civ.App.-Waco 1951, no writ). Abuse need not be limited to bodily injury; nonetheless, physical abuse will support granting a divorce on cruelty grounds. Waheed v. Waheed, 423 S.W.2d 159, 160 (Tex.App.-Eastland 1967, no writ); Cote v. Cote, 404 S.W.2d 139, 140 (Tex.App.-San Antonio 1966, writ dism'd); Blackburn v. Blackburn, 163 S.W.2d 251, 255 (Tex.App.Amarillo 1942, no writ). Acts occurring after separation may be used to support a finding of cruelty. Redwine v. Redwine, 198 S.W.2d 472, 473 (Tex.Civ.App.-Amarillo 1946, no writ). Id. At 648. c. Physical Abuse Courts seem especially willing to divide the property unequally when one spouse has physically abused the other. See, for instance, Faram v. GervitzFaram, 895 S.W.2d 839 (Tex. App. Fort Worth 1995, no writ) (72.9% of the community property was awarded to wife, based in part on husband's violent and abusive nature which contributed to the divorce); Finch v. Finch, 825 S.W.2d 218 (Tex. App. Houston [1st Dist.] 1992, no writ) (65% of community assets awarded to wife who testified that her husband had abused her and her daughter). d. Adultery In Abernathy v. Fehlis, 911 S.W.2d 845 (Tex.App.Austin 1995, no writ), the trial court declared in its decree that Daniel's adultery caused the "breakup" of the marriage and justified a disproportionate division of the parties' community property. Further, in Bell v. Bell, 540 S.W.2d 432

b.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

(Tex.Civ.App.Houston [1st Dist.] 1976, no writ), the court found the acts of adultery are not limited to adultery committed before separation. In Morrison v. Morrison, 713 S.W.2d 377 (Tex. App. Dallas 1986, dismd), the court stated that: Furthermore, the trial court found David at fault in the breakup of the marriage because of his adultery. We presume that the trial court also considered this factor when it divided the community. Gutierrez, 643 S.W.2d at 787. Based on the evidence of Carolyn's right to reimbursement and David's adultery, we hold that the trial court did not abuse its discretion in awarding a disproportionate amount to Carolyn. See Murff, 615 S.W.2d at 698. Id. at 379. Length of Marriage Courts consider the length of the marriage in deciding whether to award a disproportionate division of community property. In the following cases, the courts listed the length of the marriage as one of the factors to be considered: Cappellen v. Cappellen, 888 S.W.2d 539 (Tex.App.El Paso 1994, writ denied); Vannerson v. Vannerson, 857 S.W.2d 659 (Tex.App. Houston [1st Dist.] 1993, writ denied); Massey v. Massey, 807 S.W.2d 391 (Tex.App.Houston [1st Dist.] 1991, writ denied); Cluck v. Cluck, 647 S.W.2d 338 (Tex.App.San Antonio 1982, writ dismd); Trevino v. Trevino, 555 S.W.2d 792 (Tex.Civ.App. Corpus Christi 1977, no writ) (Court divided estate equally after three year marriage); Patt v. Patt, 689 S.W.2d 505 (Tex. App. Houston [1st Dist.] 1985, no writ) (wife who had never worked outside home and possessed no marketable skills awarded family home after long marriage). Disparity of Earning Power The court may consider the disparity of earning power between the spouses, as well as their respective business opportunities, capacities and abilities. In Rafidi v. Rafidi, 718 S.W.2d 43 (Tex.App. Dallas 1986, no writ), the evidence showed that Husband was a petroleum engineer with three college degrees. At the time of trial he was fifty-seven years old. There was no evidence of health problems. Wife, on the other hand, had only a high school education. She had ifficulty obtaining employment and was handicapped by a finger injury. The Rafidis' teen-aged daughter lived with the Wife along with three adult children. The evidence permits the inference that the Husband's earning capability exceeds Wife's. An unequal division of the community estate was justified. In Robbins v. Robbins, 601 S.W.2d 90 (Tex.Civ.App. Houston [1st Dist.] 1980), the court held that it was not an abuse of discretion to award the wife,
7

3.

who had been out of the business world for a substantial period of time, 58% of community property, and to award husband, who had much greater earning capacity than wife, 42% of the community estate. See also Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App. Corpus Christi 1999, no pet. h.). In Bokhoven v. Bokhoven, 559 S.W.2d 142 (Tex. Civ. App. - Tyler 1977, no writ), the appellate court, after reviewing the entire record of the trial proceeding, upheld a disproportionate property division stating: In this particular instance, the trial court's division of community property could be based solely upon the difference in earning capacities of the parties as set out in the findings of fact. Id. at 144. Although the court may award a larger portion of the community estate to the spouse with less education and employment experience, it need not do so, and may be less likely to do so if the community estate is very large and an equal division would satisfy the less employable spouses financial needs. Hanson v. Hanson, 672 S.W.2d 274 (Tex.App.Houston [14th Dist.] 1984, writ dismd w.o.j.). Custody of Children Section 7.001 of the Code states that the courtordered division of community property shall have due regard for any children of the marriage. In Young v. Young, 609 S.W.2d 758 (Tex. 1980), the court was presented with the question of whether the reference to "any children" in Section 3.63 of the Code (now section 7.001 of the Code) included adult children. At the time of divorce the Youngs had a thirty-two year old adult son who contracted multiple sclerosis as an adult. Physically disabled, this son lived with Mrs. Young. Mr. Young contended that "any children" meant minor children. The Supreme Court construed the statute to include adult children: the only word modifying children in section 3.63 is any." [emphasis added]. See also McKnight v. McKnight, 535 S.W.2d 658 (Tex. Civ. App.El Paso) revd on other grounds, 543 S.W.2d 863 (Tex. 1976), where the Court held that it was an abuse of discretion to leave husband without sufficient liquid assets to take over the responsibilities assigned to him in fact and by divorce decree; namely the care of two adult children and custody of three minor children. In Boriack v. Boriack, 541 S.W.2d 237 (Tex. Civ. App.Corpus Christi 1976, writ dism'd), the husband was awarded custody of all 3 of the parties children. Wife complained of an unequal division of property. The Court said the fact that Dr. Boriack was awarded custody in itself would justify an unequal division favoring him." [emphasis added]. In Liddell v. Liddell, 29 S.W.2d 868, 871 (Tex.Civ.App.San Antonio 1930, no writ), the court of appeals held that one of several factors justifying an unequal division of the property was "the burden of the 5.

4.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

care and maintenance of the child." See also Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App.Corpus Christi 1999, no pet. h.). 6. Tax Consequences and Liabilities Chapter 7 of the Code has been amended to add the following section: Sec. 7.008. CONSIDERATION OF TAXES. In ordering the division of the estate of the parties to a suit for dissolution of a marriage, the court may [emphasis added]consider: (1) whether a specific asset will be subject to taxation; and (2) if the asset will be subject to taxation, when the tax will be required to be paid. This section applies to a suit for dissolution of marriage pending before a trial court on or filed on or after the effective date of the Act, which is September 1, 2005. This statute seems to codify case law. Courts have often considered tax consequences stemming from the division of community property. Grossnickle v. Grossnickle, 935 S.W.2d 830 (Tex. App. Texarkana 1996, writ denied); Baccus v. Baccus, 808 S.W.2d 694 (Tex. App. Beaumont 1991, no writ). Although the Grossnickle court stated that the trial court is not required to consider the tax ramifications in the division, another court has stated that it is reversible error for the court to refuse to do so, particularly when the tax liability is substantial and one of the parties is without means to pay it. Baccus v. Baccus, 808 S.W.2d 694 (Tex. App. Beaumont 1991, no writ). In Grossnickle, the court stated that in dividing community property, the trial court can appropriately consider existing tax liability for the sale of capital assets that has been realized by parties at time of divorce, i.e. existing tax liabilities. Penick, 783 S.W.2d at 197; Robbins v. Robbins, 601 S.W.2d 90, 92 (Tex.Civ.App.Houston [1st Dist.] 1980, no writ). However, the court went on to state that where the question of future taxation arises, a trial court errs in allowing a credit for a future tax figure that must be derived from speculation or surmise. Harris v. Holland, 867 S.W.2d 86, 88 (Tex.App.--Texarkana 1993, no writ). In the Grossnickle case, early withdrawal triggering an additional tax would be at the election of Lee Ann Grossnickle after the divorce. The tax rate would depend upon the tax bracket of the taxpayer at that time and also the income tax law in effect at that time. This approach would be analogous to allowing a
8

discounted value on every piece of property because there might be future tax consequences if sold at a profit. The trial court did not abuse its discretion by failing to consider potential tax liability which might be incurred when the assets are withdrawn and this point of error was overruled. In Baccus v. Baccus, 808 S.W.2d 694 (Tex. App. Beaumont 1991, no writ), the courts decision to assess all of the federal income tax liability for the tax years in which parties were married and living together solely against husband was not an abuse of discretion. The court stated that: repeatedly, appellate courts have held that tax consequences stemming from the division of property as well as any unpaid tax liabilities are proper factors to be considered by the trial court in deriving at a fair and just division of the community properties. McCartney v. McCartney, 548 S.W.2d 435 (Tex.Civ.App.--Houston [1st Dist.] 1976, no writ history). Furthermore, it is reversible error for a court to refuse to consider tax liability, particularly when it is substantial and one of the spouses is without means to pay the obligation. See McCartney, supra; Cole v. Cole, 532 S.W.2d 102 (Tex.Civ.App.--Dallas 1975) aff'd 568 S.W.2d 152 (1978). Id. at 700. The court may properly assign all of the couples tax liability to one of the spouses. Vannerson v. Vannerson, 857 S.W.2d 659 (Tex.App.Houston [1st Dist.] 1993, writ denied) (assignment to husband of liability for delinquent federal income taxes was not abuse of discretion where wife testified that husband had told her he had filed the returns, and she had not known that he and not done so); Baccus v. Baccus, 808 S.W.2d 694 (Tex. App. Beaumont 1991, no writ) (court properly assessed all of federal income tax liability for tax years in which parties were marred and living together solely against husband, where husband had invested in tax shelter without disclosing investment to wife and investment contributed to tax liability of the parties, husband had withheld from wife information concerning the tax liability resulting from the investment, and husband took no steps to pay the income tax liability, including the penalty and interest, when it was at its lowest amount, even though he had sufficient funds to do so). Although lacking the power to relieve either spouse of personal liability to the taxing authority, the court may take tax liability into consideration, and may even require one party to assume the other party's liability for taxes or require reimbursement for taxes paid. Able v. Able, 725 S.W.2d 778 (Tex. App. Houston [ 14th Dist.] 1987, no writ) ; Benedict v.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

Benedict, 542 S.W.2d 692 (Tex. Civ. App. - Ft. Worth 1976, writ dism'd); Cole v. Cole, 532 S.W.2d 102 (Tex. Civ. App. - Dallas 1975, no writ). Further, in McCartney v. McCartney, 548 S.W. 2d 435 (Tex. Civ. App - - Houston [ lst Dist. ] 1977, no writ) , the Court stated: The trial court was not required to afford any greater weight to the issue of tax liability than to the other factors bearing upon the fair and just division of the community properties. However, the trial court should have taken into consideration the issue of tax liability, as with other pertinent factors affecting the justness of its decree. Id. at 439. In McCartney, the judgment of the trial court was therefore reversed with respect only to the matter of the tax liabilities, and the case was remanded to the trial court with instructions to hear only such additional evidence as may be necessary to effect an appropriate disposition of the partys income tax liability. In Janik v. Janik, 634 S.W.2d 323 (Tex.App. Houston [14th Dist.] 1982, no writ), in dividing the liabilities of parties, the trial court followed a very logical approach in ordering that each debt follow the asset that secured it and that each party pay one half of income tax; and, considering the nature of debts and husband's greater earning capacity, the total debt with which husband was burdened did not come out to an improper division. In Robbins v. Robbins, 601 S.W.2d 90 (Tex.Civ.App. Houston [1st Dist.] 1980, no writ), in its decree, the trial court found that if the proceeds from the sale of the parties' residence are not reinvested in another house within the period of time provided by the income tax laws, a capital gains tax liability may occur. The trial court therefore decreed that the husband should assume and hold the wife harmless with respect to 60% of such tax liability. In his second point of error the husband contended that the trial court abused its discretion in requiring that he assume and hold the wife harmless against such income tax liability. The trial court properly considered the income tax liability of the parties in dividing their community estate, citing McCartney. The entire amount of the capital gains realized on the sale of the parties' residence was recognized at the time of the sale. The fact that the appellant's tax liability might be later reduced through a "rollover" of the recognized capital gain upon reinvestment of the sales proceeds in another residence did not render the parties' potential tax liability incapable of determination. The Fort Worth Court of Appeals held it permissible for a trial court to hold a spouse responsible for federal income tax liability arising out of the sale of
9

the other spouse's separate property. Mullins v. Mullins, 785 S.W.2d 5 (Tex. App. - Fort Worth 1990, no writ). While tax liability is not technically a debt, the trial court may take the couples tax liability into consideration in dividing the property. Mullins v. Mullins, 785 S.W.2d 5 (Tex. App. - Fort Worth 1990, no writ); Grossnickle v. Grossnickle, 935 S.W.2d 830, 848 (Tex.App.--Texarkana 1996, writ denied). 7. Size of Separate Estate Even though a court may not divest a spouse of his or her separate property, the court may consider the size of a spouses separate property estate when dividing the community estate. Padon v. Padon, 670 SW.2d 354, 358-59 (Tex. App.San Antonio 1984, no writ; Lucy v. Lucy, 162 S.W.3d 770 (Tex.App.El Paso 2005, no writ); Massey v. Massey, 807 S.W.2d 391 (Tex.App. Houston [1st Dist.] 1991, writ denied); Walter v. Walter, 127 S.W.3d 396 (Tex.App.Dallas 2004, no petn); Madrid v. Madrid, 643 S.W.2d 186 (Tex.App. El Paso 1982, no writ); Capellen v. Capellen, 888 S.W.2d 539 (Tex.App.El Paso 1994, writ denied); Stafford v. Stafford, 726 S.W.2d 14 (Tex. 1987); Vannerson v. Vannerson, 857 S.W.2d 659 (Tex.App. Houston [1st Dist.] 1993, writ denied); Patt v. Patt, 689 S.W.2d 505 (Tex.App.Houston [1st Dist.] 1985, no writ); Smith v. Smith, 836 S.W.2d 688 (Tex.App. Houston [1st Dist.] 1992, no pet.); and Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App.Corpus Christi 1999, no pet. h.). In Tate v. Tate, 55 S.W.3d 1 (Tex.App.El Paso 2000, no pet.), the judge awarded the Wife a disproportionate division of the community estate and in awarding her 51 percent of the community estate, the trial judge may well have taken into consideration the $50,172.60 in the brokerage account and the $8,000 in travelers' checks which had been confirmed as her separate property and which were available for her future support. It is equally plausible that had the trial court characterized those assets as community property, the estate would have been divided disproportionately, given Wife's established need for future support. In the absence of findings of fact and conclusions of law, the Husband cannot show otherwise. On this record, we cannot conclude that a comparative 55 percent to 45 percent distribution in the Wife's favor constitutes an abuse of discretion. In sum, the court may properly consider the size of the separate estates of the spouses in its division of the community estate. Murff v. Murff, 615 S.W.2d 696 (Tex. 1981). 8. Benefits the Innocent Spouse May Have Derived From the Continuation of the Marriage In making a just and right division of the estate of the parties, the court may consider the benefits which

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

the spouse not at fault would derive from continuing the marriage. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). For example, this concept includes the medical benefits to which a former spouse would have been entitled as a wife of a retired Air Force officer. Hopkins v. Hopkins, 540 S.W.2d 783, 787 (Tex. Civ. App. - Corpus Christi 1976, no writ). In Young v. Young, 609 S.W.2d 758 760-62 (Tex. 1980) the court recognized that it is possible for the trial court to make a "fair and just" division by considering fault as well as other considerations, including the benefits the innocent spouse would have received from the continuation of the marriage. Likewise, in Duncan v. Duncan, 374 S.W.2d 800 (Tex.Civ.App.Eastland 1964, no writ) an unequal division of property was justified based on the probable future need for support, fault in breaking up the marriage and the benefits the innocent spouse would have received from a continuation of the marriage. The court in Duncan further stated that the circumstances of each marriage dictate what factors should be considered in the property division upon divorce. Health of the Spouses The physical condition of each spouse offers an additional factor to be considered in the division of the estate. Hahne v. Hahne, 663 S.W.2d 17 (Tex. App. Houston [14th Dist.] 1984, no writ); Phillips v. Phillips, 75 S.W.3d 564 (Tex.App.Beaumont 2002, no pet. h.); Kimsey v. Kimsey, 965 S.W.2d 690 (Tex. App. El Paso 1998, pet. denied); Vannerson v. Vannerson, 857 S.W.2d 659 (Tex.App.Houston [1st Dist.] 1993, writ denied); Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993); Patt v. Patt, 689 S.W.2d 505 (Tex. App. Houston [1st Dist.] 1985, no writ); Price v. Price, 591 S.W.2d 601 (Tex.Civ.App.Tyler 1979, no writ); Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App. Corpus Christi 1999, no pet. h.); and, Magill v. Magill, 816 S.W.2d 530 (Tex.App.Houston [1st Dist.] 1991, writ denied). In Cravens v. Cravens, 533 S.W.2d 372 (Tex. Civ. App. - El Paso 1975, no writ), the appellate court upheld a disproportionate division based on the wife's poor physical condition and stated: In this case, the Appellee testified concerning injuries she received as the result of an attack upon her by Appellant shortly before their separation. She also testified as to her disability resulting from her injuries, and her present inability to do tasks that she previously could have performed. Based upon such evidence, the trial court could have awarded her a disproportionate share of the property. Id. at 376. 9.

10. Age of the Spouses Age is a valid consideration of the courts in considering a proper division of community property. Mogford v. Mogford, 616 S.W.2d 936 (Tex.Civ.App San Antonio 1981, writ refd n.r.e.); Tate v. Tate, 55 S.W.3d 1 (Tex.App.El Paso 2000, no pet.). The court in Thomas v. Thomas, 603 S.W.2d 356 (Tex.Civ.App.Houston [14th Dist.] 1980, writ dismd) held that based on the evidence, a 70/30 division of the community estate did not constitute an abuse of discretion, considering the parties' comparative ages, earning capability, education level, probable need for future support, and the facts which led to divorce. In Roberts v. Roberts, 535 S.W.2d 373 (Tex. Civ. App.Tyler 1976, no writ), the Court stated that Edna (wife) at age 63 is more than 20 years older than A.L. (husband) and that the trial court may well have considered this age discrepancy in awarding the 149.78 acre tract to Edna. Id. at 374. The appellate court held that there was no abuse of discretion in the award of the real property to the wife. 11. Education and Future Employability The Court in McCartney v. McCartney. 548 S.W.2d 435 (Tex. Civ. App.Houston [lst Dist.] 1976, no writ), considered the future employability of the wife in the division of the estate and stated: The wife's physical disability and her lack of training will likely require her to deplete the estate awarded to her under the decree, while the husband's future earnings will likely increase the overall value of the estate awarded to him. Id. at 439. Educational background is but another factor to be considered in the division of the community property estate. Cooper v. Cooper, 513 S.W.2d 229 (Tex. Civ. App. Houston (lst Dist.) 1974, no writ); Walter v. Walter, 127 S.W.3d 396 (Tex.App.Dallas 2004, no petn); Zorilla v. Wahid, 83 S.W.3d 247 (Tex.App. Corpus Christi 2002, no pet.); Toles v. Toles, 45 S.W.3d 252 (Tex.App.Dallas 2001, pet. denied); Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App. Corpus Christi 1999, no pet. h.); Vannerson v. Vannerson, 857 S.W.2d 659 (Tex.App.Houston [1st Dist.] 1993, writ denied); and Massey v. Massey, 807 S.W.2d 391 (Tex.App.Houston [1st Dist.] 1991, writ denied). 12. Need for Future Support The court of appeals in Goren v. Goren, 531 S.W.2d 897, 899 (Tex. Civ. App.Houston [ lst Dist.] 1975, writ dism'd), held in that making its determination the trial court was justified in considering the parties' respective financial obligations
10

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

and future earning capacity, and their probable respective needs for support...An important factor, if not the most important factor, is the parties probable respective needs for future support. The Court in Pickett v. Pickett, 401 S.W.2d 846 (Tex. Civ. App.Tyler 1966, no writ), went further, theorizing that the probable future need for support seems to be the most important factor in determining the court's exercise of its discretion in dividing the community estate of the parties in a divorce. See also Burgess v. Burgess, 834 S.W.2d 538 (Tex.App. Houston [1st Dist.] 1992, no writ); Roever v. Roever, 824 S.W.2d 674 (Tex.App.Dallas 1992, no writ); Padon v. Padon, 670 S.W.2d 354 (Tex.App.San Antonio 1984, no writ); Thomas v. Thomas, 603 S.W.2d 356 (Tex.Civ.App.Houston [14th Dist.] 1980, writ dismd); Benedict v. Benedict, 542 S.W.2d 692 (Tex. Civ. App. - Ft. Worth 1976, writ dism'd); and, Roberts v. Roberts, 663 S.W.2d 75 (Tex. App.Waco 1983, no writ); Patt v. Patt, 689 S.W.2d 505 (Tex. App. Houston [1st Dist.] 1985, no writ); Mogford v. Mogford, 616 S.W.2d 936 (Tex.Civ.App.San Antonio 1981, writ refd n.r.e.) (the probable need for future support can also be considered in the division of property); Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App.Corpus Christi 1999, no pet. h.); Foster v. Foster, 583 S.W.2d 868 (Tex.Civ.App.Tyler 1979, no writ). In Tate v. Tate, 55 S.W.3d 1 (Tex.App.El Paso 2000, no pet.), the judge awarded the Wife a disproportionate division of the community estate. In awarding her 51 percent of the community estate, the trial judge may well have taken into consideration the $50,172.60 in the brokerage account and the $8,000 in travelers' checks which had been confirmed as her separate property and which were available for her future support. It is equally plausible that had the trial court characterized those assets as community property, the estate would have been divided disproportionately, given Wife's established need for future support. In the absence of findings of fact and conclusions of law, Husband cannot show otherwise. On this record, we cannot conclude that a comparative 55 percent to 45 percent distribution in Wife's favor constitutes an abuse of discretion. 13. Foreign Realty The court may consider the value of foreign realty in making its division. Although the Texas court lacks jurisdiction to determine title to such land, it may consider its existence when dividing the property over which it does have jurisdiction. In Walker v. Walker, 231 S.W.2d 905 (Tex. Civ. App.Texarkana 1950, no writ), the appellate court upheld the trial court's consideration of the value of funds used by husband to purchase land in Florida, a
11

common law jurisdiction, where wife's community interests were not recognized. The Court stated:\ The trial court in order to effect a fair, just and equitable division of the whole of the community estate was clothed with the power and authority to take into consideration the value of the community funds so invested in the Florida realty in a foreign jurisdiction and to charge the husband with one-half of the value of such funds in the allocation as here to the wife of property, real, personal or mixed, situated within the court's jurisdiction in Texas. Id. at 906. In setting aside to one spouse property within its jurisdiction, the court may consider the property beyond its jurisdiction in possession of the other spouse. Risch v. Risch, 395 S.W.2d 709 (Tex. Civ. App.Houston 1965, writ dism'd, cert. denied 386 U.S. 10 (1965). Also see, Ismail v. Ismail, 702 S.W.2d 216 (Tex. App.Houston [lst Dist.] 1985, writ refd n.r.e.). 14. Credit for Temporary Alimony Paid In Edsall v. Edsall,, 240 S.W.2d 424 (Tex. Civ. App.Eastland 1951, no writ), the wife was paid $250 per month temporary alimony and the husband was allowed $100 per month. The trial court found that the wife had received $2,200 more than the husband during the pendency of the divorce and charged the wife's interest in the community estate with $1,100 or onehalf of such excess payments received by her. The appellate court held that the trial court's decision was not an abuse of discretion. The Court of Civil Appeals assumed in Schecter v. Schecter, 579 S.W.2d 502 (Tex. Civ. App.Dallas 1978, no writ) , that the trial court had taken into consideration the temporary alimony paid to the wife since it awarded the husband the larger share of the community estate. Note, however, the case involved a premarital agreement which prohibited the wife from seeking temporary alimony. The case could be read to mean that the trial court considered the premarital agreement's prohibition, rather than temporary alimony in general. In Loaiza v. Loaiza, 130 S.W.3d 894 (Tex.App. Fort Worth 2004, no pet.), the amount of temporary support received and saved by wife during separation, and awarded to her in the divorce, was correctly omitted when calculating the portion of the community estate awarded to wife; both parties received temporary spousal support, but husband spent all of his; and, husband was not to be allowed to inflate wife's percentage of her award by taking into account her

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

share of temporary support and omitting husband's share from consideration. 15. Wasting and Concealing of Community Assets In Reaney v. Reaney, 505 S.W.2d 338, (Tex. Civ. App.Dallas 1974, no writ), the husband testified that he went to Puerto Rico with approximately $53,000. He testified that he squandered this money, lost it and very imprudently went through it. He lost some of it gambling and that he gave some of it away, that he spent it very foolishly and that at the time of the trial he did not have any of it. The Court held that in the light of the undisputed facts in this case the trial court could not make a fair and just division of the remaining community assets without taking into account Appellant's profligate loss of a large portion of the community estate. Id. at 340. In Grothe v. Grothe, 590 S.W.2d 238 (Tex. Civ. App.Austin 1979, no writ), since the husband, during the pendency of the divorce, wrongfully and willfully converted a substantial amount of community funds to his own personal use, intending to deprive the wife of her interest in such property, the court was justified in awarding a disproportionate portion of the estate to the wife. In Matter of Marriage of Moore, 890 S.W.2d 821 (Tex.App.Amarillo 1994, no writ), the trial court held that: (1) former wife could not receive damages on a separate cause of action for "fraud on the community" or related mental anguish; (2) evidence supported a reimbursement award in favor of former wife for former husband's unfair disposition of community assets; and (3) trial court did not abuse its discretion in dividing the marital estate so that former wife received slightly more than half of the net estate. In Osuna v. Quintana, 993 S.W.2d 201 (Tex.App.Corpus Christi 1999, no writ), the court stated that money spent on another woman out of community property during the marriage requires an accounting to the community, Simpson v. Simpson, 679 S.W.2d 39, 42 (Tex.App.--Dallas 1984, no writ). This type of gift or expenditure amounts to fraud upon the community estate. Grossnickle v. Grossnickle, 935 S.W.2d 830, 848 (Tex.App.--Texarkana 1996, writ denied). Id. at 209. In Loaiza v. Loaiza, 130 S.W.3d 894 (Tex.App. Fort Worth 2004, no pet.), the court held that the evidence conclusively established that husband breached his fiduciary duty to wife and committed fraud on community estate. The record established that trial court considered evidence that husband committed fraud and waste of the community estate. The trial court did not abuse its discretion when it made a disproportionate award of community estate; and, the trial court's dismissal, for insufficient evidence, of wife's tort claims against husband for fraud, waste, and
12

breach of fiduciary duty, did not require reversal of divorce decree. Money spent by a spouse on a paramour during the pendency of a divorce is a factor to be considered by the court in dividing the estate. Leal v. Leal, 628 S.W.2d 168 (Tex. App.San Antonio 1982, no writ), Simpson v. Simpson, 679 S.W.2d 39 (Tex. App. Dallas 1984, no writ). However, bad investments and poor judgment alone in the absence of fraud will not justify a disproportionate division of the community estate. Andrews v. Andrews, 677 S.W.2d 171 (Tex. App.Austin 1984, no writ). Due to the trust relationship between spouses as to community property controlled by each, the burden of proof is upon the disposing spouse to prove the fairness of the disposition of community assets. Mazique v. Mazique, 742 S.W.2d 805 (Tex.App.Houston [lst Dist.] 1987, no writ), Morrison v. Morrison, 713 S.W.2d 377 (Tex.App. allas 1986, writ dism'd). If the trial court finds that a spouse has concealed community property, it may award that property to that spouse as their share of the community estate. Rafidi v. Rafidi, 718 S.W.2d 43 (Tex.App.Dallas 1986, no writ): Arrington v. Arrington, 613 S.W.2d 565 (Tex. Civ.App.Fort Worth 1981, no writ). 16. Attorneys Fees The award of attorney's fees is another factor to be considered in making an equitable division of the estate in a divorce. Thomas v. Thomas, 525 S.W.2d 200, 201 (Tex. Civ.App.Houston [lst Dist.] 1975, no writ); Simpson v. Simpson, 727 S.W.2d 662 (Tex.App. Dallas 1987, no writ); Harleaux v. Harleaux, 154 S.W.3d 925 (Tex.App.Dallas 2005); and Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App.Corpus Christi 1999, no pet. h.). Another factor the court can consider in a divorce proceeding in making an equitable division of the community estate is appellate attorneys fees. In re Garza, 153 S.W.3d 97 (Tex.App.San Antonio 2004). A decree that one party pay the other's attorney's fees may be to award the paying party less of the estate. This is but one factor to be considered in making an equitable division of the estate. Carle v. Carle, 234 S.W.2d 1002, 1005 (Tex. 1950). See also Haggard v. Haggard, 550 S.W.2d 374, 378 (Tex.Civ.App.Dallas 1977, no writ); Fortenberry v. Fortenberry, 545 S.W.2d 40 (Tex.Civ.App.Waco 1976, no writ). 17. Nature of the Property Among the many factors considered in its division, the court may consider the nature of the property itself. In Waggener v. Waggener, 460 S.W.2d 251 (Tex.Civ.App.Dallas 1970, no writ) and Thomas v. Thomas, 525 S.W.2d 200 (Tex.Civ.App.Houston [ lst Dist.] 1975, no writ), the appellate courts recited this factor as part of a pre-Murff laundry list.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

In Jones v. Jones, 699 S.W.2d 583, (Tex. App. Texarkana 1985, no writ), the trial court found the nature of the property to be a very important factor in its division. The husband's community partnership interests were closely related to and dependent upon his brother's separate business interests. See also Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App.Corpus Christi 1999, no pet. h.). Numerous cases cite this factor when citing the Murff laundry list, however most cases citing this factor do not give clear examples of what is meant by "nature of the property." "Nature of the property" may be synonymous with size of the community estate or sizes of the spouses' respective separate estates. Nature of the property could also refer to cases where the primary assets are not readily partitionable, such as stock in a closely-held corporation controlled by one spouse or a partnership interest controlled by one spouse, or not available for disposition. 18. Debts and Liabilities Imposition of liability for the discharge of an obligation is yet another factor to be considered in the division. Failure to do so may be error. Cole v. Cole, 532 S.W.2d 102 (Tex.Civ.App.Dallas 1975, no writ) (substantial liabilities left with the wife justifies a disproportionate division in her favor); McKnight v. McKnight, 535 S.W.2d 658 (Tex.Civ.App.El Paso) revd on other grounds), 543 S.W.2d 863 (Tex. 1976); Horlock v. Horlock, 533 S.W.2d 52 (Tex.Civ.App. Houston [14th Dist.] 1975, writ dism'd) (community estate's debt structure considered in detail by trial court). See also Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App.Corpus Christi 1999, no pet. h.). It is important to also see the section herein above on tax consequences and tax liabilities. A debt created by a spouse during marriage is presumed to be an obligation of the community, and the court must divide the parties debts as well as their assets upon divorce. Taylor v Taylor, 680 S.W.2d 645 (Tex.App.Beaumont 1984, writ refused, n.r.e.). In dividing the couples debt as part of its division of the community property, the court may not modify the creditors rights with regard to the debt. Blake v. Amoco Federal Credit Union, 900 S.W.2d 109 (Tex.App.Houston [14th Dist.] 1995, no writ) (divorce court cannot alter ex spouses liability on joint debt). In Smith v. Smith, 143 S.W.2d 206, (Tex.App. Waco, 2004), the court ordered Karen to assume three community debts of an unspecified amount. Because the debt owed by a spouse is a legally relevant factor in dividing the community estate, a court may abuse its discretion if it fails to consider such a factor, citing Murff (spouse's debt as a factor in property division). The record did not disclose the amount of these debts, so the court could not have considered the amount of
13

these debts in dividing the community estate, which was error. Vannerson v. Vannerson, 857 S.W.2d 659 (Tex.App.Houston [1st Dist.] 1993, writ denied). Appellant contended the trial court erred in assigning to him all income tax liabilities of the parties from the date of marriage through the calendar year 1986, and all debts incurred by either party during marriage and not expressly assumed by Mrs. Vannerson. The court stated: The division of debts was made by the trial court as part of its division of community property. The parties' liabilities are factors to be considered in making a just and right division. Finn v. Finn, 658 S.W.2d 735, 748 (Tex.App.Dallas 1983, writ ref'd n.r.e.). A divorce court has authority and discretion to impose the entire tax liability of the parties on one spouse. Benedict v. Benedict, 542 S.W.2d 692, 698 (Tex.Civ.App.--Fort Worth 1976, writ dism'd) (husband failed to file tax returns and trial court assigned all tax liability to him). Considering appellee's testimony that she did not know that appellant did not file tax returns, it cannot be said the trial court abused its discretion in assigning responsibility for the taxes to appellant. Additionally, given appellee's testimony of the numerous judgments against Mr. Vannerson, it was not error for the trial court to assign responsibility for those judgments to appellant. Id. at 673. In Horlock v. Horlock, 533 S.W.2d 52, 61 (Tex.Civ.App.Houston [14th Dist.] 1975, writ dismd) the court of civil appeals held that factors which may be considered by the trial court in dividing the property include support provisions for the parties' son and the debts and other liabilities imposed on the husband. 19. Reimbursement Rather than ordering an immediate payment or money judgment, the trial court may adjust the division of the estate to compensate the spouse entitled to reimbursement. Morrison v. Morrison, 713 S.W.2d 377 (Tex.App.Dallas 1986, writ dism'd); Jones v. Jones, 699 S.W.2d 583, 586 (Tex.App.Texarkana 1985, no writ). See also Kimsey v. Kimsey, 965 S.W.2d 690 (Tex.App. El Paso 1998, pet. denied). Further, there was sufficient evidence to support the trial court's consideration of the community estate's right of reimbursement due to the enhancement of husband's separate estate after the date of cause of the action. Jones v. Jones, 699 S.W.2d 583, (Tex. App. Texarkana 1985, no writ). See also Harrell v. Harrell,

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

591 S.W.2d 324 (Tex.Civ.App.Corpus Christi 1979, no writ). In Beavers v. Beavers, 675 S.W.2d 296 (Tex.App.Dallas 1984), the court did not abuse its discretion in concluding that a community claim for reimbursement from wife's separate property was approximately equal to a community claim for reimbursement from husband's separate property and in excluding the reimbursement claims from further consideration in dividing the community property. In Vandiver v. Vandiver, 4 S.W.3d 300 (Tex.App.Corpus Christi 1999, no pet. h.), the trial court found that evidence was presented supporting the following factors for consideration by the court: (1) E. L.'s greater earning power and ability to support himself; (2) his education and further employability; (3) his fault in the breakup of the marriage; (4) Joan's need for further support; (5) the nature of the property involved in the division; (6) E. L.'s failure to follow court orders; (7) Joan's health problems; (8) needs of the child of the marriage; (9) community indebtedness and liabilities; (10) reimbursement; (11) the size and nature of the separate estates; and (12) attorney's fees to be paid by each party. We hold that the trial court did not abuse its discretion in finding that the division of the property is just and right. In Morrison v. Morrison, 713 S.W.2d 377 (Tex. App. Dallas 1986, dismd), the trial court stated that: Carolyn was entitled to reimbursement to her half of the community property because of David's misuse of community funds. The right of reimbursement is an equitable right which may be considered by the trial court in determining the division of community property. Horlock v. Horlock, 533 S.W.2d 52, 60-61 (Tex.Civ.App.--Houston [14th Dist.] 1975, writ dism'd). We presume, therefore, that when the court divided the community, it awarded Carolyn a substantial reimbursement for the assets David diverted from her half of the community. See Robbins v. Robbins, 519 S.W.2d 507, 510-11 (Tex.Civ.App.--Fort Worth, 1975, no writ) (the appellate court presumed that the wife's entitlement to reimbursement of her separate estate was taken into calculation by the trial court when it divided the parties' community property); TEX.R.CIV.P. 299. Furthermore, the trial court found David at fault in the breakup of the marriage because of his adultery. We presume that the trial court also considered this factor when it divided the community. Gutierrez, 643 S.W.2d at 787. Based on the evidence of Carolyn's right to reimbursement and David's adultery, we hold that the trial court did not abuse its discretion
14

in awarding a disproportionate amount to Carolyn. See Murff, 615 S.W.2d at 698. Id. at 379. C. Case Law Upholding Disproportionate Awards 1. Garcia v. Garcia Garcia v. Garcia, ---S.W.3d.---, 2005 WL 1315026 (Tex.App.El Paso 2005). The Garcia court held that the reimbursement award to wife which resulted in 62 percent to 38 percent division in wife's favor was not grossly disproportionate in overall division of the community estate; husband was awarded community assets totaling $18,440 which included community property and equity in the home, wife was awarded community property valued at $5,900, husband assumed indebtedness of $2,500 while wife assumed debts of $6,000, net award to husband was $15,940 and net to wife was negative $100, taking into consideration reimbursement award, and $10,000 was added to wife's award, so husband ended up with $5,940, while wife received $9,900. 2. Lucy v. Lucy Lucy v. Lucy, 162 S.W.3d 770 (Tex.App.El Paso 2005, no writ). The court held that fraud on the community may be considered in rendering a disproportionate division of community property. The court further held that a disproportionate division of property in favor of wife was warranted in this divorce action under an equitable right of reimbursement; husband received rental payments, which were community assets, and would not give any of the payments to wife, wife added husband's name to her checking account, and the value of the checking account dropped over $43,000 during marriage. 3. Loaiza v. Loaiza In Loaiza v. Loaiza, 130 S.W.3d 894 (Tex.App. Fort Worth 2004, no pet.), the courts disproportionate award of the community estate to wife indicated the trial court had considered evidence of fraud and waste in making property division. 4. In re Marriage of Becerra In re Marriage of Becerra, 100 S.W.3d 637 (Tex.App.Texarkana 2003, no pet.). In Becerra the evidence was legally sufficient to support the trial court's finding that a disproportionate division of community property in favor of wife was appropriate based on husband spending extraordinary sums of money on other women during the parties' marriage; wife produced evidence that husband paid $3,933.00 to his ex-wife and $9,864.73 to another woman during their marriage. Further, the evidence was legally sufficient to support the trial courts finding that the disproportionate division of community property favoring wife was justified based on testimony from

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

husband stating that he did not love wife but was going to marry her since she would help him build a house; husband's ex-wife testified that he told her that he didn't love wife, that he was marrying wife so she would help him build a house, that while husband was married to her he wrote to his first wife and stated that he didn't love ex-wife but couldn't financially afford to leave her, that he attempted to a cash a check from her without her consent, and that he cashed a check from wife's retirement account without her consent. 5. Phillips v. Phillips Phillips v. Phillips, 75 S.W.3d 564 (Tex.App. Beaumont 2002, no pet. h.). In Phillips, the trial court awarded a disproportionate amount of the community estate to Nancy. Nancy contends the trial court properly awarded her approximately 60% of the community estate with the remaining 40% of the community estate going to James. In his brief, James contends that the division was even more lopsided in favor of Nancy and he pointed out that he was awarded a mere 23.5% while Nancy was actually awarded 76.5%. The trial court entered a finding that James was at "fault" for the breakup of the marriage and awarded Nancy a disproportionate share of the community estate. 6. Sprick v. Sprick Sprick v. Sprick, 25 S.W.3d 7 (Tex.App.El Paso 1999, pet. denied). In Sprick, the award of 76.6% of the net assets of the community property estate to wife was equitable at divorce, even though finding that wife's infidelity was the reason for the dissolution would have justified a disproportionate division of the community estate in favor of husband. Kimsey v. Kimsey Kimsey v. Kimsey, 965 S.W.2d 690 (Tex. App. El Paso 1998, pet. denied). The husband in Kimsey complained that although he was awarded 62.2% of the community assets, he was awarded 96.5% of the community debts. There was a great disparity with respect to the relative earning capacities and abilities of the parties. Each party was 59 years of age. The wife attended college but did not obtain a degree. Husband, on the other hand, obtained a degree in business administration and completed one semester of a post graduate program in petroleum engineering. After leaving school and active duty in the army, the husband became self-employed in the oil and gas business. Over the years, the husband was successful in his business ventures. The trial court found that the husband had significantly greater future business opportunities than the wife and an ability to retire the debts. 7.

8.

Abernathy v. Fehlis Abernathy v. Fehlis, 911 S.W.2d 845 (Tex.App. Austin 1995, no writ). In Abernathy, the trial court's division of community property and joint obligations was not so disproportionate and inequitable as to be abuse of discretion, though the decree awarded the former wife property valued at $52,061 while assigning the former husband property and liabilities that resulted in a negative value of $35,589, where provision of the decree requiring former husband to pay the home mortgage debt of $43,000 was a patent fiction, since the mortgage was extinguished by his father's forgiveness, and the former husband had a higher total cash income and a disproportionately larger separate estate. 9. Tschirhart v. Tschirhart Tschirhart v. Tschirhart, 876 S.W.2d 507, Partial Publication, (Tex.App.Austin 1994, no writ). In Tschirhart, the trial court found the evidence at trial revealed that, compared with Suzanne, James had a greater earning capacity and income, more business opportunities, a higher level of formal education, and a valuable separate estate. The trial court granted the divorce on no-fault grounds of insupportability and awarded Suzanne a disproportionate division of the community property. When the court considered the division of property in light of this evidence and the nature of the property awarded to each party, the court was not found to have abused its discretion. 10. Matter of Marriage of DeVine Matter of Marriage of DeVine, 869 S.W.2d 415 (Tex.App.Amarillo 1993, writ denied). In DeVine, the court held that: (1) evidence was sufficient to support a finding that wife perpetrated actual fraud on husband; (2) evidence established that wife committed constructive fraud when she transferred stock owned by community to nonprofit corporation; (3) evidence established that $400,000 fairly compensated the community estate for wife's constructive fraud; and (4) compensating community estate for wife's fraud, then awarding wife only 40 percent of community estate because of her fraud, did not result in a double recovery by husband. 11. Finch v. Finch Finch v. Finch, 825 S.W.2d 218 (Tex. App. Houston [1st Dist.] 1992, no writ). The court in Finch awarded the wife approximately 65% of the community estate. In Finch, the husband had greater business opportunities than the wife. Further, the record showed that the husband abused the wife and the wifes daughter, and the husband had a greater earning capacity.

15

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

12. Falor v. Falor Falor v. Falor, 840 S.W.2d 683 (Tex. App. San Antonio 1992, no writ). The Falor court held that the trial court did not abuse its discretion when it awarded the wife a much greater share of the community estate. The Falor court found that the husband disposed of approximately $28,000 worth of community assets without the wifes knowledge and consent for noncommunity purposes. The trial court also considered the existence of the husbands separate estate, relative earning capacities of the parties (the husband earned about $36,000 per year, while the wife earned about $16,000 per year), and the wifes obligations as the sole managing conservator of the couples two children. 13. Faram v. Gervitz-Faram Faram v. Gervitz-Faram, 895 S.W.2d 839 (Tex. App. Fort Worth 1995, no writ). The court in Faram found that the trial court did not abuse its discretion in dividing the marital estate. In Faram, the wife was awarded 72.9% of the community estate. The trial court took into consideration the husbands abusive and violent nature. Further, the husband earned a steady income and retirement benefits, and the wife had never worked out of the home. The husband also had received a large portion of the personal property acquired during the marriage. The trial court also found that the husband committed waste of the community estate by acquiring property, incurring debt, and escalating attorneys fees after the couples separation. Further, because of the husbands conduct during the lawsuit, including his failure to disclose evidence during discovery, the trial court ordered him to pay the wifes attorneys fees of over $22,000. Based on these factors alone, the appellate court could not say that the trial court abused its discretion. However, the husband contends that after dividing the community estate the trial court erroneously awarded wife a judgment in the amount of $40,612.75, which he argues was inequitable, punitive, and tantamount to the award of alimony. The husband also complained that the judgment decreased his share of the community estate to a negative value. After reviewing the divorce decree, the court of appeals was satisfied that the judgment was appropriate. The award of a judgment as part of the division of the community estate is often necessary where there are outstanding community obligations. Consequently, the possibility exists that one party may end up with a negative award of community property. In this case, the judgment accounted for wife' attorneys' fees ($22,237.75), credit card debts ($5,400.00), reimbursement to her separate property estate ($9,000.00), and a one-half interest in a loan to her children ($3,975.00). The divorce decree also entitled the husband to a credit on the judgment for
16

all payments of principal on the credit card debts and all payments on the loan to wifes children. Once again, the court of appeals could not conclude that the trial court abused its discretion in awarding the judgment in favor of the wife 14. Golias v. Golias Golias v. Golias, 861 S.W.2d 401 (Tex. App. Beaumont 1993, no writ). In Golias, the court held that the property division was within the trial courts discretion. The court did not find that the trial court had abused its discretion in awarding the wife 79% of the community estate, even though the trial court stated it was going to award 75% of the community estate to the wife. 15. Frommer v. Frommer Frommer v. Frommer, 981 S.W.2d 811 (Tex. App. Houston [1st Dist.] 1998, no pet.). In Frommer, the court upheld a disproportionate division in favor of the wife. The husband was a medical doctor, had an annual income of approximately $750,000 and was likely to continue to make between $45,000 and $65,000 per month. The wife, on the other hand, had only a high school diploma. During the marriage, the wife did not work outside the home and, prior to her marriage, she earned approximately $2,000 per month as an interior decorator. Further, the husband had substantial separate property including $250,000 equity in a home, his professional association that was valued around $300,000, including art and furnishings purchased for approximately $150,000, a Mercedes-Benz car, and a one-quarter interest in a partnership owning and receiving profits from the operation of a dialysis unit. The wifes separate property, on the other hand, consisted of only an automobile and certain jewelry which was given to her by the husband during their marriage. 16. Vandiver v. Vandiver Vandiver v. Vandiver, 4 S.W.3d 300 (Tex. App. Corpus Christi 1999, no pet. h.). The court in Vandiver upheld a division of property in favor of the wife. The trial court considered several factors in granting the wife a disproportionate division, including the husbands greater earning power and ability to support himself, his education and future employability, his fault in the break up of the marriage, the wifes need for future support, the nature of the property involved in the division, the husbands failure to follow court orders, the wifes health problems, the needs of the child of the marriage, community indebtedness and liabilities, reimbursement, the size and nature of the separate estates, and attorneys fees to be paid by the parties. The court stated:

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

Community property need not be equally divided. See Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). In making a division of the property, the trial court may consider such factors as the spouses' capacities and abilities; benefits which the party not at fault would have derived from continuation of the marriage; business opportunities, education, relative physical conditions, relative financial condition and obligations; disparity of ages; size of separate estates; and the nature of the property. Id. The consideration of a disparity in earning capacities or incomes is proper and need not be limited by necessitous circumstances. Id. We must presume that the trial court exercised its discretion properly, and we are not to disturb that discretion on appeal unless a clear abuse of discretion has been shown. See Vallone v. Vallone, 644 S.W.2d 455, 460 (Tex.1982). The trial court found that evidence was presented supporting the following factors for consideration by the court: (1) E. L.'s greater earning power and ability to support himself; (2) his education and further employability; (3) his fault in the breakup of the marriage; (4) Joan's need for further support; (5) the nature of the property involved in the division; (6) E. L.'s failure to follow court orders; (7) Joan's health problems; (8) needs of the child of the marriage; (9) community indebtedness and liabilities; (10) reimbursement; (11) the size and nature of the separate estates; and (12) attorney's fees to be paid by each party. We hold that the trial court did not abuse its discretion in finding that the division of the property is just and right. E.L. makes no claim that the evidence does not support these findings or that these factors, taken together, do not support the trial court's division of the property as being a just and right division, assuming the disputed property is community property. Id. at 302. 17. Morrison v. Morrison Morrison v. Morrison, 713 S.W.2d 377 (Tex. App. Dallas 1986, dismd). The court upheld an 83.5% division in favor of wife where husband in a 35year marriage had spent substantial community funds on other women, committed adultery, and was found to be at fault for the break-up of the marriage. 18. Conroy v. Conroy Conroy v. Conroy, 706 S.W.2d 745 (Tex. App. El Paso 1986, no writ). The court found that a disproportionate division of the community estate in favor of the wife was not an abuse of discretion where
17

the wife was 47 years old and had not worked outside the home at any time during the 24 year marriage, the husband had income in excess of $3,000 per month, the wife had no income and poor prospects for any immediate alleviation of debt, and the wife assumed responsibility of the child and the mortgage on the family home, and the husband was at fault in the break up of the marriage. 19. Kluck v. Kluck Kluck v. Kluck, 647 S.W.2d 338 (Tex. App. San Antonio 1982, writ dismd). An award of the bulk of the community estate to the wife was not an abuse of discretion where the wife had not been employed during the marriage and did not have promising employment prospects, and the husband was a successful attorney who received his professional practice in total. 20. Eikenhorst v. Eikenhorst Eikenhorst v. Eikenhorst, 746 S.W.2d 882 (Tex. App.Houston [1st Dist.] 1988, no writ). In Eikenhorst, the wife was awarded 56% of the community estate. The husband was a radiologist who earned approximately $220,000 per year plus an additional $30,000 that was contributed to his pension plan. The wife earned $10.00 per hour as a part-time nurse. The court awarded the wife custody of the children and found that the husband was at fault in the breakup of the marriage. 21. Oliver v. Oliver Oliver v. Oliver, 741 S.W.2d 225 (Tex. App.Fort Worth 1987, no writ). In Oliver, the wife was awarded 80% of the community estate. The husband was a computer programmer, and the wife was a maid who lacked a college education. 22. Rafidi v. Rafidi Rafidi v. Rafidi, 718 S.W.2d 43 (Tex. App.Dallas 1986, no writ). In Rafidi, the wife was awarded between 85% and 90% of the community estate. The husband was a petroleum engineer with three college degrees and the wife had only a high school education. The wife also had a medical problem and a minor daughter and three adult children living with her. The court further found that the husband had hidden community assets. 23. Rutledge v. Rutledge Rutledge v. Rutledge, 709 S.W.2d 389 (Tex. App.Fort Worth 1986, writ refd n.r.e.). The wife in Rutledge was awarded 60% of the community estate. The husband was a retired airline pilot in his late sixties with income from oil investments; the wife was in her late forties and had no marketable job skills and no separate property.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

24. Huls v. Huls Huls v. Huls, 616 S.W.2d 312 (Tex. Civ. App. Houston [1st Dist.] 1981, no writ). The court in Huls awarded the family business to the husband and awarded the wife 85% of the community estate where the wife was a quadriplegic. 25. Roberts v. Roberts Roberts v. Roberts, 663 S.W.2d 75 (Tex. App. Waco 1983, no writ). The court awarded the wife more than 50% of the community property. The wife was 55 years of age and had health problems, and her daughter had health problems and medical expenses from an automobile accident. The wife lacked steady income, and the husband received $40,000 annual salary plus pension benefits. The court found that the husband was at fault in the breakup of the marriage. 26. Gaston v. Gaston Gaston v. Gaston, 608 S.W.2d 332 (Tex. Civ. App.Tyler 1980, no writ). The husband was awarded more than 50% of the community property where he was unable to work due to a heart condition. 27. Hourigan v. Hourigan Hourigan v. Hourigan, 635 S.W.2d 556 (Tex. Civ. App.El Paso 1981, no writ). The court awarded the husband most of the community estate because the wife had abandoned the husband and child. The court reasoned that the wifes duty to support the child would be satisfied out of her share of the community property. 28. Haulsler v. Haulsler Hausler v. Hausler, 636 S.W.2d 874 (Tex. App. Waco 1982, no writ). The court awarded the wife more than 50% of the community estate considering the fact that both adult children lived with her and would probably look to her for support. 29. Whittenburg v. Whittenburg Whittenburg v. Whittenburg, 523 S.W.2d 797 (Tex. Civ. App. - Austin 1975, no writ). The trial court referred to the expected inheritance of the husband as a factor to be weighed in making a just and right division of the estate. 30. Waggener v. Waggener Waggener v. Waggener, 450 S.W.2d 251 (Tex.Civ.App.Dallas 1970, no writ). The division of community estate in divorce action between parties who had been married for 26 years so that wife, who had not been employed for more than 20 years, who had limited college training of 11/2 years and who received custody of children, was awarded a greater share than husband who made judicial admission of acts of cruelty alleged by wife was not manifestly unjust and was not an abuse of discretion.
18

31. Duncan v. Duncan Duncan v. Duncan, 374 S.W.2d 800 (Tex.Civ.App.Eastland 1964, no writ). Factors to be looked to as justification for an unequal division of the community property between divorced spouses are the probable future need for support, fault in breaking up the marriage, and benefits the innocent spouse would have received from continuance of marriage. 32. Bokhoven v. Bokhoven Bokhoven v. Bokhoven, 559 S.W.2d 142 (Tex.Civ.App.Tyler 1977, no writ). In dividing community property, the trial court may take into consideration the difference in earning capacity, capacity and abilities of the parties, business opportunities, the probable future need for support, fault in breaking up marriage, and benefits the innocent spouse would have received from continuation of marriage. The court stated that In this particular instance, the trial courts division of community property could be based solely upon the difference in earning capacities of the parties as set out in the findings of fact. Id. At 144. 33. Vannerson v. Vannerson Vannerson v. Vannerson, 857 S.W.2d 659 (Tex.App.Houston [1st Dist.] 1993, writ denied). The trial court may consider many factors in making an unequal division of marital property, including education, respective earning power, business and employment opportunities, physical health, probable future need for support, award of custody, size of parties' separate estates, length of marriage, and fault in its break-up; additionally, trial court may take into account spouse's dissipation of the estate. 34. Zamora v. Zamora Zamora v. Zamora, 611 S.W.2d 660 (Tex.Civ.App.Corpus Christi 1980, no writ). The trial court may consider many factors in determining whether one party requires a greater portion of the community estate on divorce, some of which are relative earning capacities and business experience of the parties, education or background of the parties, size of separate estates, the age, health and physical condition of the parties, fault in breaking up the marriage, the benefits the innocent spouse would have received had the marriage continued and probable need for future support. 35. Massey v. Massey Massey v. Massey, 807 S.W.2d 391 (Tex.App. Houston [1st Dist.] 1991, writ denied). The trial court may consider many factors in making an unequal division of the community property in a divorce action including education, respective earning power, business and employment opportunities, physical health,

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

probable future need for support, award of custody, size of parties' separate estates, length of marriage and fault in its breakup. 36. Goren v. Goren In Goren v. Goren, 531 S.W.2d 897 (Tex.Civ.App.Houston [1st Dist.] 1975, writ dismd), in making the division of community property of parties in connection with divorce decree, trial court was justified in considering parties' respective financial obligations and future earning capacity, and their probable respective need for support. 37. Walston v. Walston Walston v. Walston, 119 S.W.3d 435 (Tex.App. Waco 2003, no pet.). The factors that may be considered by the trial court in making a just and right division of the community estate in a divorce include not only obvious facts, such as the existence and value of the assets which comprise the current community estate, but waste of community assets during the relevant time period. 38. In re Marriage of Rice In re Marriage of Rice, 96 S.W.3d 642 (Tex.App.Texarkana 2003). Evidence was sufficient to support an award of a disproportionate share of marital property to wife, including award of incomeproducing properties to wife, to effect an equitable distribution; husband had a higher earning capacity than wife, the managing conservatorship of the couple's youngest child was awarded to wife, husband had used wife's credit card without her knowledge, and husband had later failed to pay credit card bills on time, thereby ruining wife's credit. 39. Zorilla v. Wahid Zorilla v. Wahid, 83 S.W.3d 247 (Tex.App. Corpus Christi 2002, no pet.). The trial court acted within its discretion in awarding approximately 60% of marital property to wife and 40% percent to husband, where the record contained evidence indicating that husband contributed less than equal share to family's finances, dissipated family's assets, and failed to make court-ordered payments, but there was also evidence from which the court could have inferred that wife attempted to conceal assets by transferring them into friend's name, misrepresented her income, and quit or cut back on her employment to obtain additional funds from husband. Further, a spouse's failure to make court-ordered temporary support payments or failure to obey a court's temporary order restricting use of community assets may justify disproportionate award of the community estate.

40. Magill v. Magill In Magill v. Magill, 816 S.W.2d 530 (Tex.App. Houston [1st Dist.] 1991, writ denied), in ordering a division of community property, the trial court stated that a court may consider a number of factors including the disparity of income or earning power of the parties, the spouses' capacities and abilities, relative physical conditions, relative financial condition and obligations, size of separate estates, and the nature of the property, citing Murff. To effect a just and proper division of the property, the trial court may, in its discretion, determine that one party is entitled to a greater share of the community. The record reflected that that appellee was awarded two items of property where appellant was not awarded property of equal value. Appellee had accumulated $14,000 in her teacher retirement fund. Testimony revealed that school districts do not contribute to the social security program, consequently, upon retirement a teacher cannot collect social security. Appellee was awarded the $14,000 as part of the property division. The record further reflects that the community purchased an annuity, through the John Alden Insurance Company, to pay for the education of appellee's daughter. The annuity had a present value of $12,000, but there was no evidence regarding the original cost of that annuity or its accumulated interest. It was awarded to appellee as part of the property division. There is evidence indicating the appellee had no separate estate and was in poor physical health. Upon consideration of all of these circumstances, the trial court was entitled to award the appellee a greater share of the community estate, provided the award was not so disproportionate as to be unjust and unfair. Appellant has failed to demonstrate that the division of property was manifestly unjust and that the mischaracterization of his separate property created any inequality that constituted an abuse of discretion. IV. PLEADINGS BE SAFE AND PLEAD IT SO YOU CAN PROVE IT In order to avoid an objection to presenting evidence or arguments in support of a disproportionate division based on specific equitable grounds the best practice is to plead the grounds affirmatively in your petition for divorce. Simply requesting a just and right division in your petition for divorce should be enough to allow you to present whatever evidence and arguments in support of a disproportionate division you can think of to present, however if you have facts to support, for example adultery or cruel treatment, or facts to support any of the other specific grounds for divorce as set out in Title 1, Subtitle C, Chapter 6, you need to plead those grounds separately along with the no-fault ground. However, if you have not pled a specific theory and your trial court believes you had to plead the theory, you should request a trial amendment under
19

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

Tex. R. Civ. P. 66, or cite the court the case of Jackson v. Jackson, 506 S.W. 2d 261 (Tex.Civ.App.Amarillo 1974, writ dismd) allowing consideration of fault in the break-up of the marriage when only insupportability had been pled. V. ARGUMENTS AND IDEAS Knowing the law is only the beginning. The remainder of this outline will be dedicated to a discussion of themes, arguments and trial tips to make you a more persuasive advocate when requesting a disproportionate division from the trial court. Overall, the idea is to make your case more compelling than simply reciting the law to the trial court and hoping for the best. Effective advocacy means taking the law and the facts and arranging them together into a compelling argument. Remember, your judge has heard all this before. Persuasiveness is the key in family lawyou must get the judge interested in your case and make the judge want to help your client. A. Know Your Judge and Be Willing to Persuade Your Judge If You Have To One of the first considerations in preparing a case for trial where you will be asking for a disproportionate division is to find out about your trial judge. Most judges have a theory that each party is entitled to fifty percent of the estate and the judge must be persuaded to give one side more than the other. Find out if your judge has a reputation as a fifty-fifty judge. Find out if the judge has any hot or cold buttons regarding adultery, abuse or cruelty. Find out the judges background on financial issues, i.e. experience in accounting. In other words, how can you formulate your arguments and plan your case if you do not know your audience? Put another way, when you try a case to the court you are essentially selling your case to the trial judge. Before you go to court, you need to know something about the market, as you would if you were selling a product. If the judge is well known for being a fifty-fifty judge, you likely should acknowledge to the court you are aware of the courts customary fifty-fifty policy but believe the court will be compelled to vary from that policy in your case. This will get the judges attention from the start. If you put on your evidence in a persuasive manner and make compelling arguments highlighting the short and long term effects of the facts of your case, you may sway even a fifty-fifty judge to give you a disproportionate division and perhaps even get the judge to reexamine their fifty-fifty policy. You must persuade the court that to award a fifty-fifty division would be to ignore the Code, because this division would not be just and right and to ignore case law.

B.

Know your Assets and Ask for the Best Another consideration to keep in mind as you prepare your case, especially in front of a fifty-fifty judge, is the fact that assets with the same value do not necessarily have the same worth or are not readily ascertainable. For instance an unimproved piece of real estate worth $100,000.00 and a certificate of deposit for a $100,000.00 are not really worth the same. The certificate of deposit earns interest income, has no tax consequences, no selling costs and no maintenance costs. The real estate may carry with it the financial burdens of taxes, maintenance, improvements, and selling costs. You must always keep in mind the cost basis of assets for assets that stand alone or are located in accounts (e.g. stock). When you are preparing your proposed division for the court, one way to achieve a true disproportionate division is to ask for an award of those assets which are liquid, generate income, have no adverse tax consequences, no selling costs and no maintenance costs. This way, the division may appear more equal. I suggest giving the court a spread sheet of the property and the values. Depending on the case, I may or may not propose a division. Many times the division of property can appear to be fifty-fifty on its face but in reality the two halves do not have the same or equal value. C. Winning the Battle and Losing the WarThe Cost of Litigation While you are plotting away on how to persuade the trial court to give your client 75% of the community estate, dont forget to consider the high cost of doing business down at the courthouse and the lack of client satisfaction after trial. Most cases settle without going to trial and clients, studies show, are happier with their settlements and their attorneys when the case is resolved prior to a contested trial. The principal reason for settlement in many cases is that it simply costs too much to litigate even if you win. At the initial consult look at a property sketch of values and determine what 10% of the estate is. Talk to the client about going to trial to pick up an extra 10% pursuant to a disproportionate division, and then the cost of litigation to gain that 10%. In the bread and butter divorces, this 10% isnt enough to cover the attorneys fees. In fact, to go to the courthouse, the estate may even be reduced by 20% or so. In this situation, you could lose money for your client, which in turn the client will more than likely to blame you, and further you will probably add immensely to the anger between the parties. The point is, be sure your battle is worth the cost of the war before you use all these great ideas on arguing for a disproportionate division.

20

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

D. Advocate Your Arguments 1. Adultery Many times when cases involving adultery are tried to the court, we simply put on the adultery facts through testimony and then expect the court to react to those facts with a significant disproportionate division. You must find the X factor when presenting these cases. You must shock the judges conscience. You must show the judge the aggravating circumstances. To be more of an advocate and more compelling with adultery facts, try in the opening statement, testimony, or in closing arguments to advance some of the following themes or arguments. The Partnership has been Abandoned One argument that might help you tie adultery to justifying a disproportionate division without asking for punishment or retribution would be to emphasize the partnership nature of both marriage and the community property system and the loss of same. In some stereotypical marriages the husbands job is to be the breadwinner and the wifes job is to raise the children and keep the home. The long-term goal of this partnership is to raise the kids and provide for their education and then hopefully save for retirement. The work and raise the children partnership may take many years to fulfill financially with the last 10 to 20 years often providing the greatest financial rewards for retirement. If the husband in this scenario bails out on the marriage in the 20th year by having an affair, this would leave his wife with a much smaller than planned estate for the retirement years. To divide this estate equally is not just and right and would in fact ignore the factors set out in Murff and other case law as set out herein above. A factual and emotional presentation and argument showing that the husband has abandoned this partnership and now wants to keep his highest income earning years for himself, his girlfriend and his retirement, instead of sharing these things with his partner and wife is one way to make adultery facts financially and emotionally compelling. The wife in this situation must be able to convey her feelings to the court. It is highly important to put on all evidence of each and every Murff factor, for whichever factors the facts warrant, to give credence to the arguments and the case. In addition, show the court how fast he will make up the extra percentage wife would be awarded. The gist of this argument is that the husband and the wife have spent all these years taking care of the goose that lays the golden eggs (i.e. hubbys career) and just when the goose is getting really good at laying lots and lots of golden eggs, hubby wants to run off with the goose and share it not with his wife but, with his girlfriend. Prepared and presented this way, an argument for a disproportionate division may seem more compelling to the court.
21

Lets face it, you would be disturbed if a husband told his wife to make 4 Easter baskets for a needy family his office adopted, which were really for his girlfriends children, but you may not be as disturbed by an affair wherein the wife did not give her husband sex for 10 years for no valid reason. b. Choices and Consequences Another possible theme in an adultery situation may be to talk about choices and consequences. In this argument you should remind the court that you are not asking the court to punish the adultery but to recognize that the decision to have an affair is a conscious choice that has real and significant financial and emotional consequences for the other spouse and children. This argument might go something like this: Mr. Jones made a choice to have an affair. He has made a choice to continue the affair and evidently after this case is over, he has made a choice to marry his girlfriend. Mr. Jones choices have financial consequences both for him and for Mrs. Jones. For Mr. Jones the financial consequences of his choice will not be threatening to his lifestyle. Hell continue to earn his six figure income for so long as he continues to enjoy his career. Mr. Jones will have no worries financially and will have all the money he wants to happily live out the choices he has made. For Mrs. Jones, there were also choices and now she will suffer the consequences. Early in this marriage Mrs. Jones made a choice to abandon her education and her career goals and to be a stay at home mom. When she made that choice she didnt know that 25 years later her husband would leave her. The financial consequence now of Mrs. Jones decision 25 years ago to be a wife and a mom is that she is 48 years old, has no marketable education, no marketable career or career skills and no meaningful income earning ability. The courts of appeals tell us you are not to punish adultery with a disproportionate division of property. The adultery has hurt her enough and ruined her dreams. We are asking that you not punish Mrs. Jones for her decision to keep her vows, to raise the kids, and to support her husband, as was planned. If the court does not award her a disproportionate division, the financial consequences of her husbands choice to leave her for another woman will have harsh financial and emotional consequences for Mrs. Jones and the children for the rest of her life. The just and right division in this case is one of a disproportionate division in favor of Ms. Jones and for the benefit of the children. We must not forget that the children are one of the most important factors in the just and right division and a disproportionate division in their mothers favor would also be just and right to them.

a.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

c.

Make the Requested Division Financially Fair and Not Emotionally Punitive Whatever theme, theory or argument you create, it should tell a financial story at the end of the day. Just simply asking the court to award a disproportionate division because there has been adultery will not likely persuade a judge all that much. You need to fashion financial evidence, emotional evidence, and arguments that show youre requested disproportionate division truly is fair, just and right. Disparity of Income Most judges believe this factor is the most persuasive in making a decision to make a disproportionate division. However, just introducing evidence that one spouse makes a lot more money than the other, and pointing that fact out in closing argument, falls far short of what can be done with disparity of income facts. The following are some ideas about how to spice up a presentation of disparity of income facts and arguments. a. The Spouse Will Make it Back If you are asking for disproportionate division that amounts to an extra $100,000.00, one demonstration you might consider making is how quickly the high income earner will earn back the extra $100,000.00 you are seeking. In a case where the husband makes several hundred thousand dollars a year, this financial fact can be very persuasive especially if the disputed amount can be earned back by the high income earner in a very short period of time. How long it would take a spouse making $250,000.00 a year to save $250,000.00 if you assume the spouse saves 20% of their income and those savings earn 8% per year. The total time required would be 4.2 years. b. The Other Spouse will Never Catch Up The inverse of the the other spouse will make it back demonstration is a showing of how long it will take the lower income earning spouse to save the money sought in the disproportionate division. Depending on the financial facts of the case sometimes it can be shown that it will take a spouse beyond their lifetime to save the amount in dispute in the disproportionate division. How long it would take a spouse making $25,000.00 a year to save $250,000.00 if you assume the spouse saves 10% of their income and those savings earn 8% per year. The total time required would be 27.4 years, over 6.5 times longer than the high income earning spouse. A 10% savings rate was chosen for the low income earning spouse to reflect the reality that most likely less money will be available for savings because the low income earning spouse will have to spend more of their income on living expenses.
22

2.

Fifty-Fifty Wont Be Fair Long It may be useful to point out to the court the effect of a fifty-fifty division over time. In situations where there is a great disparity in income earning capacity, the division will not stay fifty-fifty for long. Assume the following: Husband and wife have been married for 30 years and are 50 years old at the time of divorce. Husband makes $250,000.00 a year and wife, although she hasnt worked in over 20 years, has found a job paying her $25,000.00 per year. The parties have a $500,000.00 liquid estate that is fully invested and will earn 8% per year. Further assume that because of husbands high income hell be able to save 20% of his income for retirement and because of wifes lower income, shell only be able to save 10% of her income for retirement. Under these basic assumptions, if the court were to divide the estate fifty-fifty at the time of divorce, the division of property would certainly not stay fiftyfifty over time. After 5 years the division would look like a 64% division in favor of the husband and after 10 years a 69% division in favor of the husband and after 15 years a 72% division in favor of the husband. If you combine these financial projections with an argument that husband has abandoned the marital partnership you will be able to make a very compelling argument for the fairness of a greatly disproportionate division at the time of divorce. d. Trading One Years Salary for the Next Twenty If the parties have been married 15 or 20 years and husband makes $250,000.00 a year, one argument to make might involve asking for a disproportionate division in an amount equal to just one year of husbands $250,000.00 per year salary. Basically the argument is that husband will make upwards of $250,000.00 per year for the rest of his life, so it is unfair to ask that wife receive the equivalent of just one year of husbands salary as a disproportionate division? 3. Difference in the Size of the Separate Estates If the facts involve a situation where the value of one of the spouses separate estate far exceeds the value of the community estate, you should try to do more than simply point this fact out to the court. Think creatively and craft some arguments to make the most of this important factor. a. It Wont be Missed and the Kids Can Eat If the husband has a $2,000,000.00 separate estate and the community has a $250,000 value after a long marriage where there are still minor children, you shouldnt be shy about asking for the majority of the smaller community estate. If most of the assets awarded to the wife in such a case would be used to

c.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

support the children this would be an especially compelling argument. b. Dont Finish Last Sometimes you see situations where wife has a large separate estate and the community estate is made up almost entirely of the value of husbands retirement that he has worked his whole career to save. Another fact sometimes present in these situations is that the husband and wife have spent husbands community salary in order to keep from spending wifes separate estate. In this type of situation, argue the inequities of the financial situation to the court and ask for a disproportionate division of the remaining community assets in favor of the husband. A chart or graph showing the assets that will be available to each of the parties at retirement age might be graphically demonstrative of the financial realities. Custody of the Children One of the factors that may be considered in making a disproportionate division is who will be awarded custody of the children. The parent who is awarded primary custody of the children also assumes most of the financial responsibilities and career restraints that come with full time child rearing duties. Creating a chart or graph documenting these expenses and burdens can be a useful tool to use in argument. And, remember that 7.001 of the Code are not limited to minor children! Another demonstration that might be useful in the appropriate case is to document the disparity of income available to the respective spouses given the added expenses of raising the children. For instance, if husband will have post divorce disposable income of $250,000.00 and wife will have post divorce disposable income of only $60,000.00, including her child support award to support her and the five children, this economic fact should be demonstrated in a chart or graph. The long term effect of such a situation will likely be that the wife will be depleting the community estate awarded to her while the husband will likely be adding to his wealth. VI. TOOLS AND TECHNIQUES A. Proposed Division Critical to almost any argument requesting a disproportionate division is a spreadsheet or summary telling the court exactly how you want the court to divide the property and the value of each piece of property. Simply asking the court for a disproportionate division and hoping the court will magically come up with the right division of assets for your client is very dangerous. Better practice is to tell the court exactly how you are requesting that the property be divided and to walk the court through the how and why of your requested division using the proposed division as a road map. Remember to look at
23

the nature of the assets you are asking for and ask for the unencumbered, ascertainable, and/or lucrative assets, with thought given to cost basis. I think it is helpful to have the following columns on any spreadsheet: Description of Asset Husbands Value Source of Husbands value Wifes Value Source of Wifes value Husbands Column Wifes Column Judges Value Column Column for Husbands award by Judge Column for Wifes award by Judge

4.

Tie the item numbers directly to the inventory and appraisement of your client. B. Financial Planner/Financial Expert Perhaps one of the most useful tools to utilize in creating and demonstrating arguments for a disproportionate division is a certified financial planner or an accountant. Such an expert can create charts and graphs depicting the present and long term effects of possible divisions of the community estate. Having a financial expert walk the trial court through the short and long term effects of the disparity of income power or the effect of a fifty-fifty or ninety-ten division over time can be very compelling. C. Charts and Graphs Even without a financial expert, by doing some very simple mathematical calculations you can create numerous charts and graphs which will visually demonstrate the financial facts and arguments you are trying to convey to the court. Sometimes a picture is worth a thousand words. Every opportunity you get, in opening statements, the testimony, and closing arguments, try to visually show the court what you are talking about. D. Witnesses and Mental Health Professionals What is more persuasive to the court than good witnesses? Fewer and stronger witnesses are better than a large number of witnesses. Be sure to interview these witnesses and never call a witness cold to the stand. Make sure these witnesses backgrounds are checked and that you ascertain what they could say that is not in your clients favor. Mental health professionals can also be invaluable evidence to show the court how your client has been affected by the actions of the other spouse. If your client has been seeking therapy, it shows the sincerity of the hurt your client has been suffering.

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

E.

Scorecard Argument The most important item you can take with you from this paper, besides the case law, is the scorecard argument perviously proposed by Kevin Fuller. It is one of the most effective and demonstrative ways to persuade a court to give you a disproportionate division. What follows is an argument to use for what Ken Fuller calls the scorecard argument. In this argument you want to make an exhibit to list all the factors the court may consider in dividing the property that are relevant to your case and leave a blank beside each listed factor. I would suggest some case law be listed under each area you are submitting to the court. The following factors are recommended: Fault in the breakup of the marriage Fraud on the community Benefits the innocent spouse may have derived form the continuation of the marriage Disparity of earning power of the spouses and their ability to support themselves Health of the spouses The spouse to whom custody is awarded The needs of the children of the marriage (adult or minor) Education and future employability of the spouses Community indebtedness and liabilities Tax consequences of the division Ages of the spouses Earning power, business opportunities, capacities and abilities of the spouses Need for future support Nature of the property involved in the division Wasting of community assets Credit for temporary support paid by a spouse Community funds used to purchase out-ofstate property Gifts to or by a spouse during the marriage Increase in the value of separate property through community effort by time, talent, labor and effort Excessive community property gifts to the parties children Reimbursement Expected inheritance of a spouse Attorneys fees Creation of community property through the use of a spouses separate estate The size and nature of the separate estates Creation of community property by the efforts or lack thereof of the spouses
24

Actual fraud committed by a spouse Constructive fraud committed by a spouse Physical violence

In closing argument make an argument something similar to the following argument. Judge, the Supreme Court of Texas in Murff vs. Murff and numerous courts of appeals tell us there are a number of factors the court should consider in deciding whether or not to make a disproportionate division of the community estate in a fault or no-fault case. In this case I believe there are 6 relevant factors to consider, which are all supported by the case law and the Texas Supreme Court: The disparity of income earning power the length of the marriage Custody of the children Fault in the break up of the marriage Size of the parties separate estates Business opportunities available to the spouses

Judge, if we start with the idea that assuming all things equal there should be a fifty-fifty division, I believe that the court should consider each of these 6 factors and decide if the facts and evidence justify a disproportionate division after considering each of the above-listed factors. Further, I would ask the court in the inverse to look at the facts and to decide whether to award a fifty-fifty division is just and right, because I would submit to the court a fifty-fifty division is not just and right. Now looking at our list of factors the court is to consider, Im going to go through each factor and write down what I think the appropriate percentage difference should be from a fifty-fifty division considering each of these items, one by one. Your honor may score each factor differently than I do, but I think under the evidence and equities of this case some percentage difference should be assigned to each one of these factors in my clients favor. After walking through each of these items the scorecard might look like this: The disparity of earning power The length of the marriage Custody of the children Fault in the break up of the Marriage Size of the separate estates Business opportunities available to the spouses TOTAL 10% 5% 5% 5% 10% 5%

40%

Towards the end of this argument you can suggest that the court or your opponent score the scorecard as they

Avoiding the Equal Property Division: When Equitable Doesnt Mean Equal

Chapter 46

may deem appropriate. If you have made your factual presentation compelling on the issue of disparity in these various factors, it will be extremely hard for the court or your opponent to argue that the appropriate consideration to be given each factor is zero. You should further argue that it would be neither just nor right for the court not to assign at least some percentage difference to each of the relevant factors and that to not do so is ignoring what is just and right! VII. CONCLUSION This article is designed to give you some ideas or spark your imagination to make your courthouse requests for a disproportionate division more compelling and more persuasive. Perhaps you choose to brief the issue to the court and find this article helpful. The key in any argument is to have the facts, figures, and numbers and tell a compelling story that clearly demonstrates the need for equity to be done by NOT awarded a fifty-fifty division. Be a good story teller, and you will likely end up being a persuasive advocate. Good luck.

25