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Is divorce unfair to wealthier people?

It is rare for two people to enter into a marriage with equal assets and earning potential. It is also rare for both spouses to contribute equally to the marriage from a financial standpoint. While the two-income family is more common now than it used to be, many marriages still depend on a primary breadwinner. So how do divorce laws treat that primary earner when it comes time to end the relationship?

Community property or equitable distribution

The vast majority of states in the U.S. use the legal theory of equitable distribution when dividing property in a divorce. Equitable distribution gives judges discretion to divide marital property in a fair manner based on how the property was acquired. Texas, however, is one of the states in which the theory of community property applies. Community property laws assume that spouses are equal co-owners of all income and assets acquired over the course of the marriage. There are a few exceptions, but the law favors a result closer to a 50-50 split than in equitable distribution jurisdictions. 

Understanding marital property

In Texas, it is important to have a thorough legal analysis of your assets in a divorce. Courts encourage couples to reach an agreement on property division, as well as other issues, rather than forcing the court to do it for them. This allows a divorcing spouse to prioritize which assets (and debts) are perhaps over- or under-valued. You can still control some elements of the property division through intelligent negotiation.

Not all property in a marriage is marital property. If you received gifts or an inheritance, it may be considered separate property and not subject to division. If you owned property before the marriage and kept it separate throughout the marriage, it may not be considered joint property. A skilled divorce attorney can help you understand the difference and make a case for certain property to be exempt from the division of assets in your divorce.

Texas law

Texas is not the best place for breadwinners when it comes to divorce. In order to reach the best possible result, you need to work with a lawyer who is thoroughly familiar with family law and property division in Texas. An attorney board certified in family law by the Texas Board of Legal Specialization can help you resolve your property division issues, as well as your other concerns in divorce.

Source: Business Insider, "The best states to get divorced in if you are much richer than your spouse," by Tanza Loudenback, 16 November 2016

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