When a divorce suit is filed, the Court is required to divide the estate of the parties in a manner that the Court deems “just and right.” The Court is also challenged to “give due regard for the rights of each party” and last but not least, to not forget about the children. Seems reasonable.
But as we dive into the minutiae that is divorce, the terms “just” and “right”—rather broad and some may say lofty in the first place—should be fully understood by soon to be exes. “Just” is defined as ‘legally right; lawful; equitable,’ and “right” as “that which is proper under the law, morality, or ethics.” “Due regard” seems akin to something that might be uttered in Downton Abbey, but herein means simply ‘giving attention, care, or consideration’ in a manner that is ‘just, proper, regular, and reasonable.’
Definitions play out in the courtroom every day: what is a just and right division of an estate in divorce terms? How do we really give due regard for the rights of a husband and wife who are splitting from each other and taking different paths? The Courts have given us some direction to pin down the practical points they look to when giving “due regard” to a just and right division between spouses.
Practical points as follows:
- The age, health, and physical condition of the spouses;
- The spouses’ education levels;
- The earning potentials of each spouse;
- The business and employment opportunities of each spouse;
- The financial condition of each spouse;
- The size of each spouses’ separate estates;
- The nature of the property being divided;
- Fault in the breakup of the marriage relationship;
- The benefits the spouse who did not cause the breakup would have received had the marriage continued;
- Whether one spouse has wasted community assets that would have otherwise been part of the overall division; and
- The attorney’s fees spent by the parties.
While additional ‘factors’ have been found to exist in the penumbras and emanations from facts listed above, these provide a roadmap for how a Court will ultimately make an estate division decision. As such, important points to analyze a potential divorce situation through; knowing how these factors apply to your situation will be advantageous for predicting what you may be entitled to in a just and right division.
Paramount to remember in these situations, the Courts are given an immense amount of discretion to make the final decision. With standards of “just” and “right” and “due regard,” it is fiction to assume black-and-white applications will be given to every potential situation.
The Texas Supreme Court recently summed up the charge of the Court in the division, saying that in the end, “the Court is to do complete equity as between the husband and wife and the children, having due regard to all obligations of the spouses and to the probable future necessities of all concerned.”
Also noteworthy, the notion of “fair” does not necessarily find itself rooted in the standards we ask our Courts to apply here. We hope that if we reach a just result that is equitable, this would also be a result that is fair. However, played out in Court, “just” and “equitable” can be but are not always fair. Nevertheless, the terms “just and right” are not just placeholders; they have meaning and are meant to express values that we hold precious, principles that make up the fundamental core of our society.
Whether you are the spouse traditionally labeled as “the breadwinner” or “the homemaker” or “the deadbeat” or “the stay-at-home mom” or “the workaholic” – the list of practical points can serve as a roadmap to deciphering what an equitable division of the marital estate will be upon divorce.
It is also important to remember that perspective can be deceiving. The money-making spouse might see the homemaker as having contributed less to the marriage and marital estate, but the decision-maker analyzes these situations from an objective point of view, and perspectives can be easily colored and skewed when drawn out over the course of a five, ten, or twenty-year marriage.
As such, to better anticipate how a Court perceives your case, it is helpful to try and put yourself in the shoes of the other party, to view from their perspective, to understand what their fears and goals might be.
Since the Court will try to take an objective perspective of both sides to a dispute, analyzing and understanding the opposing spouse is a smart first step to gaining insight on how strong or weak your perspective might be. And because the final outcome is intended to comport with fundamental notions of equity and justice, do not forget the power of a great story.
Assets and debts, accounts and stocks, dividends and capital gains, are the grey tones that give shape and structure to a narrative. But, the emotional connections, the personal struggles and victories, the stories behind the relationships, fill in the color.
Advocating for a just and right division of an estate requires numbers and spreadsheets, but if you leave out the color of a well-presented story, you’ll sell yourself short.
So, get a good lawyer and tell a good story.