Division of Property During Divorce: Part III: Justifications for Unequal Just & Right Divisions

January 18, 2019

 Because the just and right division is only possible after the entire picture of both spouses’ lives is clear, the possible justifications for unequal just and right divisions are nearly endless.  Rather than trying to list all the possible justifications, I’m going to briefly describe three (3) common justifications to provide a glimpse into the types of things courts typically find persuasive enough to justify unequal just and right divisions.


Significant difference between spouses’ earning potential

This should seem obvious after the discussion about how a just and right division is made, but there’s more.  If there’s a difference between the spouses’ earning potential, skills, training, knowledge, etc., then Texas courts will consider the reason why the difference exists. 


If the court finds one spouse’s earning potential is significantly lower because they sacrificed their earning potential so the other spouse could increase their earning potential, that’s something that will be weighed in favor of the spouse with lower earning potential when a court is making a just and right division.  Thus, this could justify an unequal just and right division.


Significant difference between spouses’ separate property

Courts will also consider the size and value of each spouses separate property to see whether one spouse has significantly more separate property than the other.  If the court finds that a near even division of the community property would cause one spouse to have significantly less than the other spouse due to significant differences between the spouses’ separate property, then a court can decide to give a greater share of the community property to that spouse—this is a common justification for unequal just and right divisions. 


The idea behind a disproportionate division in such an instance is that the spouses were equals in a partnership and contributed equally to the partnership (this is a rebuttable presumption that’s not based solely on monetary contributions), therefore, at the termination of the partnership, the spouses shouldn’t be beginning anew in extremely different situations. 


Infidelity and family violence

If one spouse has cheated on the other or committed family violence against the other, then courts are free to award a greater share of the community property to the non-offending spouse.  As I mentioned above, courts presume that both spouses contribute equally to the marriage, but if one spouse is cheating or abusive then they’re not contributing equally and the court’s presumption will be rebutted.  Situations where one spouse isn’t contributing equally to the marriage due to infidelity or family violence can justify unequal just and right divisions.    



The division of property during divorce can be scary and often creates some anxiety.  Hopefully this three (3) part blog post has helped provide you with some useful information so that you don’t get quite so anxious.  If you’re considering divorce or currently going through a divorce and would like to speak to an attorney about the division of property or any other divorce-related issue, don’t hesitate to give Kannon a call at 512-900-6011 to schedule your free case review. 

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