Just and right does not mean equal — and that misconception trips up more divorce clients than almost any other. In this follow-up to their conversation on fault grounds for divorce, Holly Draper is joined again by her partner at the Draper Law Firm, Carrie Tapia, to dig into disproportionate division of the marital estate: how it works, who gets it, and what it actually takes to plead and prove it.

Texas is a community property state, but that does not mean the law promises a 50/50 split. The family code calls for a “just and right” division, which really means whatever the judge on your case decides is fair under the circumstances. Holly and Carrie walk through why they set client expectations at an even split as the baseline, why courts are given broad discretion on appeal, and why the biggest swings they have personally seen have landed closer to a 55/45 or 60/40 split — with true outliers reserved for extreme facts or default judgments.

The heart of the episode is a walk through the Murff factors — the non-exclusive list of considerations from the 1981 Texas Supreme Court case Murff v. Murff that judges may weigh in deciding whether to award more than half the estate to one spouse. Holly and Carrie go factor by factor: fault in the breakup, disparity in earning capacity and education, health and age, the size of each spouse’s separate estate, the nature of the community property itself, benefits from continuation of the marriage, custody of the children, waste or fraud on the community, and disproportionate attorney’s fees. They share which factors actually move the needle with judges in their experience, and which ones sound compelling in theory but rarely tip the scales in practice.

The conversation also covers the practical side: how to plead a disproportionate division (and why it is worth including even when you are not sure you will pursue it), the different evidence needed to prove each factor — from tax returns and forensic accountants to medical records — and how to run a cost-benefit analysis with clients before spending thousands of dollars chasing a waste claim. Holly and Carrie close with the appeal side of property division: the strict 20-day deadline to request findings of fact and conclusions of law, and common reversible errors like mischaracterization of separate property and double-dipping in how assets are awarded.

In this episode you’ll discover:

• Why “just and right” doesn’t mean 50/50
• How the Murff factors guide judges
• How to plead a disproportionate division
• What it takes to prove each factor
• How to weigh the cost of a waste claim
• The 20-day deadline that can sink a property division appeal

Mentioned in this episode:

• Texas Family Law
• Podcast
• Disproportionate division
• Community property
• Characterization
• Forensic Accountant
• Findings of Fact
• Conclusions of Law

Transcript

Episode 144 | Getting What is Right: Disproportionate Divisions-Texas Family Law Insiders Podcast

Holly Draper: Just and right does not mean equal. Carrie says it means fair. I say-

Carrie Tapia: It means what the judge thinks is fair

Holly Draper: … it means what the judge says is fair. It probably does not mean what you think is fair

Announcer: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, attorney Holly Draper

Holly Draper: Hi, everyone. Welcome back to the Texas Family Law Insiders podcast. I am joined today again by my partner, Carrie Tapia. We’re following up on the next step after our last episode, which, if you missed it, was about fault grounds for divorce. And so, we thought a logical next discussion point after that was disproportionate division of the estate. So, we’re back today to chat about that and how to plead it, how to prove it, whether or not you can get it, when you can get it, all those things. So, thanks for joining me again, Carrie.

Carrie Tapia: Yep. Thanks for having me back.

Holly Draper: I think one of the most common misconceptions that we see from clients is that because Texas is a community property state, that means everything is going to be divided equally.

What do you tell them when that is what they think?

Carrie Tapia: Well, I always explain that the family code says just and right division, and that can mean basically what’s fair under the circumstances, which means it’s very fact-specific, and it’s also very judge-specific. And so that usually means about a 50/50, but there are certain factors that can push it one way or the other.

Holly Draper: Yeah, and I normally tell people, everyone, regardless of their circumstance, to assume it is going to be a 50/50 split, and if you get more than that, it’s a bonus. And yes, there are certain circumstances that make it more likely to get more than 50%, and we’ll kind of go through some of those things as we go.

But it is really good to set the expectation at 50/50, because you never know what a judge is going to do with those circumstances, and you don’t want to have somebody thinking they’re going to walk out of there with 80% of the estate and then they’re disappointed when they get 55%.

Carrie Tapia: Right. And I think sometimes people get bad advice or input from other family members or neighbors or AI-

Holly Draper: Facebook mom’s groups…

Carrie Tapia: …Facebook mom’s groups about, “Well, I got 90% of the estate,” because that’s probably not true, first of all. But people can get unrealistic expectations from bad forces like that.

Holly Draper: Exactly. Okay, so as you mentioned, the family code uses the term just and right for how the estate should be divided in a divorce.

That does not mean that we have a statutory presumption of an equal split. Just and right, and I know you’ve used the word fair. I tell people oftentimes four, fair is a four-letter F word. And we don’t want to use that word because what our client thinks is fair, and what the judge thinks- Right … is fair, and what- Yeah

the opposing party thinks is fair are definitely going to be three completely different things.

Carrie Tapia: Right. It’s what the judge thinks is fair, which who knows what side of the bed they wake up on that morning. Right. Exactly.

Holly Draper: And I think it’s really important to understand that trial courts have very broad discretion in what constitutes a just and right division.

I remember very early on in my career being in a courtroom and having a chat with this judge who was particularly chatty. He’s no longer on the bench, but he was just talking to these lawyers, including me, and he made a comment about, “I am never going to go outside of a 60/40 split because I don’t want to get overturned on appeal.”

And I often use that example. You know, yes, we may shift one way or another a few percentage points, but it’s usually going to fall within the 60/40 split. I’ve been doing this for quite a while. The biggest disparity I can recall was a 70/30 split, and that was an agreed-upon split. And there were criminal charges involved, and there were very extreme circumstances.

We’re not just talking about your typical the husband had an affair or the wife had an affair or something like that.

So, if the judge does do a disproportionate division, they get a lot of discretion when it, if that goes up on appeal, and proving that they abused their discretion is pretty tough to do.

We sometimes will do that by trying to show that it appears the judge was trying to do this division, but when you actually use the right numbers, it’s skewed much differently, and therefore, it was an abuse of discretion. So something to keep in mind, the judge doesn’t like somebody, and they hammer them on property division, that is usually going to be within their discretion to do.

So, can you kind of distinguish the division of the community estate from characterization?

Carrie Tapia: Right. So, characterization is whether or not something can be divided or not. If it’s somebody’s separate property, then it is off the table, cannot be divided by the court, no matter what. If it’s community property, then it’s subject to division or it’s, it’s on the table, on the spreadsheet to be divided and considered as part of the community estate when the court is determining what that just and right division is.

Holly Draper: It’s important to remember, though, that the person trying to prove separate property has the burden of showing-

Carrie Tapia: Yes

Holly Draper:  … clear and convincing evidence that it is separate property. And you just testifying that, “Oh, I had this before the marriage,” is generally not going to cut it. You’ve gotta have bank statements.

You’ve gotta have real estate deeds, depending on whatever type of property it is.

Carrie Tapia: Right.

Holly Draper: If you don’t prove it by the required standard, then that is going to be treated as community property and be subject to this just and right division.

Carrie Tapia: And it’s also, especially if you’re talking about bank statements, I mean, depending on the length of the marriage, you might not be able to get those bank statements that would show that that’s the separate property.

And so then you’re looking at trying to hire experts for tracing and backing into it, and it’s just not, you’re not going to get there.

Holly Draper: Right. I find that the longer people have been married, with the exception of real estate, that’s easy to prove generally.

Carrie Tapia: Right.

Holly Draper: But everything else, it is very challenging for people that have been married for a long time, because most people don’t keep those kind of records.

So, next let’s talk about pleading and what, as an attorney, we do or do not have to do to get a disproportionate share of the estate. So, in a normal Texas family law practice manual petition that is very bare bones, it is going to generically say that the court should divide the estate in a manner that it’s, is just and right.

Do you think that is enough to get you a disproportionate share?

Carrie Tapia: I don’t want to find out. I, I would rather plead the disproportionate. And if, if you have grounds for disproportionate division, then I think you should plead that and then maybe back off of it or take it out, not pursue it. I, I think that just and right by definition should be that, that doesn’t mean 50/50.

But I think if it’s something that you’re prepared for, then you would have time to amend your pleading and add those disproportionate divisions.

Holly Draper: And you mentioned, you know, if you have grounds for a disproportionate division. That does not necessarily mean fault grounds. If you had fault grounds, you know, sometimes we want to plead those out of the gates and sometimes we don’t.

But if you are heading towards a trial and there are fault grounds, you want to go ahead and get those in an amended petition because you definitely need that to get the fault grounds reason to get a disproportionate share.

Best practice definitely to include a request for disproportionate share based on the various Murff factors, which we’ll go over in just a minute. But I do think if you have used the trigger language of asking the court to divide it in a manner that is just and right, that should technically be enough. But better to plead it and not need it than need it and not plead it. So best course of action, go ahead and include it.

If you are relying on fault grounds as a basis, which we talked about last time, adultery, cruelty, a variety of other fault grounds, that does need to be separately pled and proven in order to get you that disproportionate share.

But those are not the only ways you can get it. Fraud and waste are also ways that you can get it, and that requires a different level of pleading, different type of pleading, different level of proof than the fault grounds or the other Murff factors.

You do not need to plead for a specific percentage. I know it can be tempting to want to be very specific in pleadings. We just have fair notice pleadings. Just asking for a disproportionate share in your client’s favor is all that you need to do

So moving on to the Murff factors. Tell us where these come from, what these are.

Carrie Tapia: So Murff v. Murff is a Texas Supreme Court case back in 1981 that identified a list of factors that a trial court may consider when deciding if they’re going to sue the division. It is not an exclusive list, so just because it’s not on here doesn’t mean that you shouldn’t plead for it and shouldn’t argue it, but this was, these are the factors that were outlined by the Murff case.

Holly Draper: So, let’s kind of walk through those factors and talk about our experience when dealing with those. The first one would be fault in the breakup of the marriage. Could a court, in your opinion, give a disproportionate share based on fault if you didn’t plead for fault grounds?

Carrie Tapia: I don’t think so, because, we’re a no-fault state, that’s what we talked about last time, and if you’re at fault in the breakup of the marriage, then there should be a fault ground pled and proven

Holly Draper: In theory, there could be a scenario where a judge thinks that someone is more to blame than the other and could factor that in without it falling under one of the fault grounds.

But that’s pretty weak, and I don’t think that by itself is going to get you there. But maybe combined with some of these other factors. The next one, I think, is probably the most common reason that I personally have seen judges do a disproportionate share, or where in settlement there’s been a disproportionate share, and that is a disparity in earning capacity.

What do you see on that?

Carrie Tapia: Right. Well, a lot of those kind of go hand in hand, the disparity in earning capacity, future earning potential, education, and future employability of each spouse. This is the type of situation where you’ve got the stay-at-home parent, probably mom, who hasn’t pursued her career, has supported her spouse to pursue his career, and here it’s time for divorce, and she doesn’t have the ability to make money the way that he does.

And so, I think that that is a ground that judges would take into consideration more so than some of the other ones.

Holly Draper: Now, this is the most common situation where we have potential clients, usually stay-at-home moms, who think they’re going to get a very disproportionate share. And I do really proceed with caution there… that is not a guarantee.

Carrie Tapia: Right.

Holly Draper: We’re going to try. We’re going to plead for it. We’re going to argue for it, but plan your life assuming that it is going to be- It’s not … an even split.

Carrie Tapia: Work on that education now. Yeah.

Holly Draper: The next one would be the relative physical condition and health of the parties. I think that kind of ties into future earning capacity as well.

You know, when you have somebody, especially if they’re disabled, can’t work, that really can swing it If you have some people that are older and one of them is really, is still working and is doing well, the other one maybe not so much, that can swing it as well. What do we have next?

Carrie Tapia: Relative financial condition and obligations that the spouses would be carrying post-divorce.

Holly Draper: So, if one spouse had all the debts in their name, typically we want those debts going to that person because the creditor doesn’t care what your divorce decree says. They want whoever’s name it’s in to pay it. So, if everything is in the wife’s name and there’s $100,000 of debt going on the wife’s side of the ledger, you know, that can o- be used to offset an additional amount.

Now, at the same time, if you shipped over an extra 100,000, that’s not changing the disproportionate share of the estate.

Carrie Tapia: Mm-mm.

Holly Draper: So, it’s not going to be a dollar for dollar amount, but if someone’s taking on extra burden, that could take, be taken into account.

Carrie Tapia: Or perhaps if maybe you have an upside down estate where there’s not enough money there, there’s not enough black numbers to offset the red, then that disproportionate division could come in that way, kind of backwards.

Holly Draper: Yeah. Next, we have a disparity in ages. I think this is an interesting one. What are your thoughts on that one? When would we use it or see it? How would it come into play?

Carrie Tapia: I think it would tie into the relative physical health and condition of the parties. Um, if you have one spouse that is about to hit retirement age and they’re about to be on a fixed income, and then you have another spouse who’s much younger and still has plenty of years of earning, then I think that would be an argument perhaps worth making, depending on the rest of the issues and facts of the case.

Holly Draper: Yeah. The size of each spouse’s separate estate. This one bothers me a little bit personally, because it really is penalizing someone who maybe was really successful before they got married, or maybe had a big inheritance or something like that, where the court’s looking at it and saying, “Oh, you know, the, the wife has $2 million in investment accounts, and the husband has nothing. So we’re going to give the husband more to help make up for that.” What? What’s your opinion on that?

Carrie Tapia: I think in practice that this probably ties in if there’s also some claims of fraud on the community or wasting of community assets. So maybe husband has a large separate estate because he was building that instead of building community, and so maybe that’s when that would actually come into play.

I don’t think that, I would hope that we’re not just penalizing people for happening to have, happening to have something before they came into the marriage, and that it’s probably more so tied in with, well, you should have been building up the community instead of your separate during the marriage.

Holly Draper: And I could see it also being an issue if that separate property maybe was a business.

Carrie Tapia: Mm-hmm. Yes.

Holly Draper: If someone started… You know, I, I can recall having clients where this business, which is now worth millions, was started while they were engaged, and they’ve both been involved in it. That’s been their source of income. But only one of them’s started, you know, technically is the owner, and it’s technically separate property because it was before the marriage.

So, I can see that maybe as being one way this could play in.

Carrie Tapia: Mm-hmm.

Holly Draper: The nature of the community property itself. So is something liquid assets versus not liquid assets, um, businesses, retirement accounts, real estate. This is a discussion that we often have with clients pretty early when we’re talking about property division.

It’s not apples to apples. Equity in the house is not the same as cash, is not the same as retirement. So sometimes there can be a disproportionate share for because of the apples to oranges comparison. Usually, I think that would show up in terms of tax calculation maybe. You know, okay, if this person has to pull out money from their 401, they’re going to get hit.

So they’re-

Carrie Tapia: Right …

Holly Draper: we know they’re going to have to pull it out because they got nothing else. Maybe we’re going to give them a little bump to cover that hit.

Carrie Tapia: Right.

Holly Draper: Benefits the innocent spouse may have received from continuation of the marriage. What does that mean, and what do we need to know about that?

Carrie Tapia: Well, I think that also ties in with the fault grounds.

Can you have an innocent spouse if there’s not a fault ground? If there’s not a fault in the breakup of the marriage, if there’s not a fault ground that’s proven, is there an innocent spouse? I would think probably most people that are married would say that no one’s innocent. Again, I think that this might play into if you’ve got, like, a stay-at-home mom, and then husband has an affair, wants to end the marriage.

Well, that stay-at-home mom would have received a benefit from the con- for that marriage continuing, whereas now she’s not going to have that benefit. Yeah. And so that would be that argument.

Holly Draper: The next one is wasting of community assets by a spouse or fraud on the community. Can you give some examples of what would constitute that?

Carrie Tapia: Gambling debt and accumulating a lot of debt that the other spouse maybe doesn’t know about, or liquidating assets to give to other family members or to give to a paramour, again, without the innocent, quote, “spouse’s consent or knowledge.” Those are the ones that I’ve seen come up the most are those.

Holly Draper: I have seen, more than I think is appropriate lately, a lot of judges finding wasting or fraud really where it appears to me, like these are when I’m looking at transcripts and stuff for appeals, where it logically seems to me like one of the spouses is the one that handled the money, and the other spouse didn’t really care.

And so, they weren’t necessarily trying to defraud the community, they were just maybe not the smartest investor, or they were, you know, moving mon- You know, I’ve seen situations where people who are very savvy with businesses and investments and things like that, they’re moving money around, they’re borrowing, they’re doing things to help grow the estate.

But when … And oftentimes I think the lawyers don’t understand what’s happening, the judge doesn’t really understand what’s happening. There may not be sufficient time in your trial to explain what’s happening. But I, I see a lot of that, where the spouse who doesn’t know what’s going on, they end up saying that money was wasted, and judges seem to be kind of buying that.

Do you see the same thing?

Carrie Tapia: I haven’t come across that. I have seen, you know, looking through our clients or another party’s statements and trying to figure out was this a bad investment or was this shady business moving money around? Because a bad investment isn’t necessarily waste, right? People make bad investments. Um, but if there’s hiding of funds, then that’s a different story.

Announcer: This episode of the Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non-parent custody cases, jurisdiction issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access.

For more information, visit draperfirm.com or call 469-715-6801.

Holly Draper: The next one is custody and primary care of the children. I think In most instances, child support accounts for this. But some examples of when I think it’s a really important factor would be, say there’s a disabled child, and the parent who is going to be the one primarily taking care of that child, they’re not going to be able to work a full-time job because they’ve got to get this kid to therapies or to medical appointments or whatever.

That is definitely a reason for a disproportionate share going to that parent. Um, just a typical standard versus ex- or, you know, expanded standard and primary, I don’t think this should weigh much, if at all. What do you think?

Carrie Tapia: I agree. That’s what child support is for. Um, maybe if there was a situation… the obligor is retiring soon, and so the child support’s not going to be set at what it would’ve been during his career, then perhaps a disproportionate division there.

I don’t know. I’m just kind of thinking of, thinking about options, but I can generally-

Holly Draper: I think a lot of these factors kind of play in together. So if-

Carrie Tapia: Mm …

Holly Draper: you have, okay, mom’s getting primary custody, mom’s going to stay at home mom. She’s going to be making- Right … her, you know, the disparity earning capacity is really big, too.

So those kind of play together, and it’s hard to point that this one factor is the factor. It’s how they all intertwine together.

Carrie Tapia: Right.

Holly Draper: And the last one would be attorneys’ fees, or when one spouse’s conduct caused the other to incur disproportionate litigation costs I don’t usually see this as happening. I, more often, would see it as a, just like a separate line item of making one spouse cover attorney’s fees for the other, or outstanding debt to a lawyer. What do you see?

Carrie Tapia: I don’t think I’ve ever seen it considered, but I do think it would be better to have it considered in the division rather than a judgment for attorney’s fees.

Because if there’s money there to cover it, then I think having a disproportionate division to the party that either owes the attorney’s fees or paid more attorney’s fees is better than a piece of paper that then you have to abstract and try to enforce a judgment on.

Holly Draper: So having gone through all of the factors that, again, it’s a non-exhaustive list, but those are the factors in the Murff case.

Which factors do you see moving the needle the most with judges?

Carrie Tapia: Waste. I think that they care more about waste of community funds than much other things.

Holly Draper: I think that I definitely see that, but I also see the disparity in earning capacity being a big one, where typically with the stay-at-home mom not being able to-

Carrie Tapia: Mm-hmm.

You know, I can recall very early in my career, um, the couple had… L- they were living high on the hog, but they really hadn’t been saving a ton. And, um, but they were s- living, living large, and the husband made a ton of money and the wife had been a stay-at-home mom. And the job that she got, the she could get, paid her $8 an hour. So, there was a big shift. Granted, the estate wasn’t that big, but shift to her as much as possible to allow her to try and save up or, you know, give her some runway to be able to make more money than that.

So now we know the different grounds or factors that can be considered. Let’s talk about proving it With, and we’ll kind of go through some of these factors and what could we show in court to prove it or disprove it if the other side is claiming it. Starting with earning capacity disparity

Carrie Tapia: So, tax returns, W-2s, 1099s, pay stubs. Um, maybe if you’d had an expert about what different types of careers generally would make. Evidence that one spouse is leaving the workforce to care for the marriage or support the other spouse or take care of the children. Those are all things that would go to that one.

Holly Draper: And I think when you’re the one, there, there’s some factors that can make this much more difficult, and that typically is when someone owns a business. Because if you don’t know what you’re looking at, the tax returns can tend to really skew what appears to be making or what it appears to be worth.

So, if you have somebody who owns a business and we think he– they’re doing pretty well, they’re living in a big house, they’ve got some nice cars, that is a good time to think about hiring an expert because that… Also, valuing the business is going to be important, but that expert can be helpful in proving this.

Next, we have health and physical condition. Obviously, if somebody’s on disability, that’s something you’re going to show. I personally don’t think a disability finding is a guarantee that this is going to be a factor that shifts the estate, because some people that have a disability can work and do certain things, but it could be.

I have seen… Recently, I just heard about a trial where a judge was like, “She’s disabled. That’s the end of it. I don’t need to hear anything else.” And that was related to kind of a different issue, but that’s one way. What other ways could we show health and physical condition should be impacting the disproportionate division?

Carrie Tapia: Maybe medical records. Have the doctor testify about ability of what they’re able to do. If they are receiving disability, either from maybe veteran’s benefits or disability through the government, having those records to show the amount that they’re receiving and why.

Holly Draper: The next one is fault as a factor. And I think if you’re proving fault, same as we talked about the last time with what we’re going to have to show to prove adultery or to prove any of the other fault grounds.

Waste or fraud on the community. How are you going to prove or disprove that?

Carrie Tapia: Well, to prove it, you’re going to need a forensic accountant, um, to really dig into all the records. You’re going to need all of the bank and credit card statements. I’ve done this a couple times where you have a forensic accountant that goes through and itemizes all of the maybe mystery transactions or, “Look at all these ATMs right next to this casino,” or things like that to build up your waste claim on that.

Holly Draper: I think a lot of the waste fraud, when you’re trying to defend against that, where I’ve seen it has been, we have one… Usually the person owns a business or they are the money manager of the marriage, and they are much more sophisticated financially than the other side. And when you’re representing that one, you’ve got to explain it, walk down the path of what these transactions really are, why these transfers are not waste.

They are money moving between accounts because account A didn’t earn interest, but account B does earn interest, and then when I need that money, I transfer it back, and it’s not really going anywhere but just to other accounts. So being able to explain that, maybe having summary exhibits or something like that showing, you know, these are the transactions they’re questioning and here’s what really happened with them.

Carrie Tapia: Your first step is going to be producing all the actual statements, because if you have to do lots of motion to compels to get those statements for those transfers, it starts to work against you.

Holly Draper: Yes. All right. The size of separate estates, and we talked about this a little bit before of, you know, the burden being on the person to prove their separate property.

So, I think this ties right in with that. Now, if you’re the one on the other side, you’re not the one trying to prove it, but you’re trying to argue because they have this big separate estate, I should get more of the community… it’s kind of a fine line. If you don’t want to concede that something is separate, what do you do?

Carrie Tapia: Maybe bifurcate it? Try to have a trial characterization first. I don’t know that you’re going to get very far with that.

Holly Draper: Or you kind of, you know, have… Well, a lot of times we’ll do this, have alternative options for the court. You know, we believe this is community property, and it should be divided in a just and right manner.

But in the event that you find it is separate property, then you should divide the remainder of the estates

Carrie Tapia: Yeah

Holly Draper: …in this way. And last we have, how do you prove in court benefits from continuation of the marriage?

Carrie Tapia: I think that’s really going to tie into some of the same evidence as the earning capacity and disparity.

So, showing, um, tax returns. Maybe if somebody has a, an asset that’s about to come to fruition, like maybe RSUs, a whole bunch of RSUs are about to vest, and… That, well, that, that might not be the best example. But something like that where you’re going to have something that’s going to be a big asset, and then if they were to have continued the marriage, then that would’ve been a community asset. I don’t know how you would prove that necessarily, but-

Holly Draper: And I also think just being able to show, you know, I’ve been a stay-at-home mom, he was making a million dollars a year, and if we had stayed married, I would’ve continued to live in a household that was making a million dollars a year. But now, I’m going to be living in a household where I make $9 an hour. So I need-

Carrie Tapia: Right. Yeah.

Holly Draper: It ties into the earning capacity as well, but I think that, that was one benefit that this person is going to miss out on. So you, you mentioned forensic accountants. That can get expensive in a hurry, and we know that not all clients are in a position to bankroll experts. How do you counsel a client on whether the potential upside of a waste claim is worth the cost of proving it?

Carrie Tapia: Well, you obviously have to do discovery first. Gather the data that needs to be reviewed. Get the bank statements, get the credit card statements. And then see what AI can do for you first. Before AI, I would have clients that were really on a budget. I would say, “Okay, you go through them. You go through these statements, and you tell me what you think would show this waste claim, and then let’s regroup.

Let’s add it up and see where we’re at.” Um, and then you just have to analyze it to see, like, cost benefit analysis. Is it worth paying this $10,000 to $15,000 expert for this if what we’re talking about is $8,000? Nope, probably not. Definitely not. But if it’s more, then it becomes, like I said, cost benefit analysis.

I do say that a lot of times, this type of decision, clients are, “Well, it’s the principle of it. It’s the principle. He, you know, he wasted it, so I, we should be able to prove it.” And then we have a discussion about how principles can be very sensitive in family law.

Holly Draper: Yes.

Carrie Tapia: And ultimately, ultimately, it’s up to the client if that’s what they want to pursue, but generally, and like I said, unless you’re talking big dollars, it’s probably not worth it.

Holly Draper: And keeping in mind that just because you think there’s big dollars of waste doesn’t mean that by hiring an expert we’re going to be able to show that. So there may be-

Carrie Tapia: Or that the judge is…

Holly Draper: Yeah.

Carrie Tapia: Right.

Holly Draper: And there, there’s definitely risk in hiring that expert because maybe it’s not what you think. Maybe we can’t prove waste, but now you know-

Carrie Tapia: Right

Holly Draper: …we can’t prove it. So there’s a lot of pros and cons that have to get weighed before pulling that trigger with a client. Okay, so we have gone over all the different grounds of a disproportionate share. So in reality, w- well, how big of a split can anybody re- realistically expect to get?

Carrie Tapia: Well, that’s really difficult because it is very judge specific.

Um, and you gave the example of how somebody said they’d never do more than a 60/40. I also think people get somewhat hung up on the percentage of the split when it, there’s other factors that go into that, such as, well, what are we even considering? What’s on the spreadsheet when we’re talking about this?

Sometime, like the separate property, for example, is that on the spreadsheet when we’re considering it or not? Or if somebody has debt that the other side disputes and says should not be considered in the division of the estate. Well, if it is considered in the division of the estate, then maybe we do have a disproportionate division. If it’s not considered, then it’s not disproportionate. So I think the numbers that we’re using to come up with these percentages matter more than a lot of times people give value to. But I would say the biggest percentage, the, the biggest split that I’ve seen personally in my cases was on default cases, where the other side didn’t even show up.

And-

Holly Draper: Well, and I think if that, if you find yourself on the short end of that stick, you need to look at appealing real fast because there is very specific case law out there about how you have to prove it to get that disproportionate share in a default, and a lot of people don’t do that. A lot of judges just want, like, hustle it up, let’s go. And if you didn’t put on the evidence, you’re going to get, uh, that default’s going to get overturned.

Carrie Tapia: Right.

Holly Draper: And I think, you know, we talk about percentages, but you also have to look at, like, the total value of the estate. If you have a $10 million estate, a 1% shift is a lot of money. If you have a $50,000 estate, a 1% shift is nothing.

So, looking at percentages is not necessarily the only way to look at it when we’re, we’re talking about this. Getting something really extreme, you know, I think there are a lot of people out there who think that they have been wronged so badly, and this is the worst person in the world who has done this to me, and they should get everything.

And I always tell people, I’m like, “This judge has heard it all.” They have heard the worst of the worst, and they are probably not going to care. I’m trying to think what may be the biggest I’ve seen from a judge… I don’t know, because usually it’s really hard to tell because, like, what numbers was the judge using for this? How much is this actually worth? You gotta start digging. If it wasn’t your case and you’re, you know, an on appeal or something, digging, what does this really mean? Let’s put these numbers in a chart and figure out what we’re actually talking about here.

What do you think the biggest you’ve ever seen is?

Carrie Tapia: Ah, it’s really hard to answer because of the first, like which numbers are we talking about? But I would say a 55/45.

Holly Draper: Yeah. I, if I have a client that gets 55%, I’m saying that’s a big win.

Carrie Tapia: Dancing.

Holly Draper: Yeah And when you’re negotiating, you have to take that into account. Again, a $10 million estate, 5% is a lot of money and it is worth going to trial.

But if you have a small estate, okay, your best day in court’s going to get you an extra 10 grand, but it’s going to cost you $30,000 in attorney’s fees, maybe let’s, you know, see if we should reach an agreement.

Carrie Tapia: Right.

Holly Draper: Okay. So, trial’s over, we have a ruling. Let’s talk about appealing disproportionate division. If you are representing the person who does not like what happened, does not think it was appropriately divided, what do you need to do?

Carrie Tapia: Request finding of facts and conclusions of law.

Holly Draper: And that has a very strict deadline. You must do it within 20 days of when that final order is signed. You cannot get an extension. You cannot beg for mercy because you forgot. I’ve seen a lot of attorneys who mistakenly think that is a 30-day deadline instead of a 20-day deadline, and if you don’t do that, you are going to lose on a property division appeal almost universally.

It’s fatal to most claims when we are talking about an appeal. And, pro tip, if the judge doesn’t do them within the required amount of time, you have to file a notice of past due findings, exceptions, and conclusions of law. Because if you don’t, it’s just like you never filed the original request to begin with, and it’s fatal to most cases on appeal.

What are examples of reversible error that we can see in a property division case?

Carrie Tapia: Mischaracterization. So, if the judge finds that something is community property, but the burden was met for it to be separate property, um, or awarding a disproportionate division when there’s no evidence tied to the Murff factors to do so.

Double-dipping, which would be if you’re using the same misconduct to justify a fault finding and a waste finding and maybe post-course statements. You can’t be made whole three separate ways.

Holly Draper: Well, I, I think double-dipping is different than that. I think if the judge thinks your fault ground is really, really bad, they could apportion it in multiple ways.

But it’s, you know, I’ve seen situations where, okay, I’m awarding this $100,000 bank account to this person, but then I’m awarding this amount of money that you got from selling the RV to the other person. Well, the RV money is the $100,000 account. So, it’s kind of duplicative where you’re, you see this number is accounted for incorrectly in how the property has been awarded, and that the result is what, not really what the judge was intending to do.

Although if you see that, that’s a good, uh, motion to reconsider, to point it out to the judge first and maybe get them to fix it if they really didn’t intend to do that.

So, we’re kind of out of time here, but just as a quick little recap, just and right does not mean equal. Carrie says it means fair. I say-

Carrie Tapia: It means what the judge thinks is fair

Holly Draper: …it means what the judge says is fair. It probably does not mean what you think is fair. Uh, but it is very discretionary and fact-driven. And, you know, just make sure you understand those Murff factors, that you are pleading what you need to plead, and have the proof to prove what you need to prove.

So, thank you so much for hopping on with me today.

Hopefully, we gave everyone some useful information they can use going forward in their property division trials, and we will catch you all next time.

Announcer: The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law and appellate matters.

For more information, visit our website at www.draperfirm.com.