“Loss of Earning Capacity” Benefits in the Community Property Jurisdiction--How Do You Figure?

In the interest of uniformity, benefits for the loss of earning capacity should be subject to the same legal principle when determining marital property rights, regardless of the context in which those rights arise. However, courts throughout the United States have relied upon four different methods to determine title to loss of earning capacity benefits upon divorce. These approaches include the unitary approach, the analytic approach, the mechanistic approach, and the case-by-case approach. Because the determination of title to benefits varies tremendously, the need for certainty in this area of the law is necessary particularly in light of the Texas Supreme Court case, Lewis v. Lewis. The Lewis decision only added to uncertainty in the community property system and the laws upon which it is based. The Texas Supreme Court should have used the analytic approach in regard to loss of earning capacity in Lewis because Texas courts have done so with other similar benefits, including retirement benefits and fire casualty benefits