The purpose of this blog is to provide a basic overview of how spousal maintenance works and show why it is a good tool to make divorce fair and equitable.
Spousal maintenance is Texan for what most of the world calls alimony. In Texas, spousal maintenance are monthly payments. These payments should not be confused with monthly child support payments or property claim payouts. One spouse pays the other spouse for some specific period of time to support the other spouse. These payments can be made while the divorce is pending or after it becomes final.
WHY AGREEING ON SPOUSAL SUPPORT IS A PROBLEM.
My experience is that people in the middle of a divorce have a hard time making smart financial decisions.
If a spouse does not make as much money, lacks a college degree, or has been out of the work force for some time faces a tough job market. A spouse in this situation often requests spousal maintenance feeling they deserve compensation after divorce for sacrificing their professional career raising the family and/or supporting the other spouse’s career.
The spouse contemplating paying spousal maintenance, it can be equally challenging to think about supporting the ex-spouse over and above child support and the property settlement.
WHAT ARE THE TYPES OF ALIMONY IN TEXAS?
In Texas, there are two types of spousal maintenance. The first type is called “court ordered” and the second type if called “contractual.” In this first part of this 2 part post, we are going to discuss court ordered spousal maintenance. If you want to read about contractual spousal maintenance, click here.
Court ordered spousal maintenance is the kind a judge can order a spouse to pay involuntarily. Keep in mind that just because the law makes it possible does not mean it is easy to get, that it will be a large amount of money, or it will last forever.
Why is court-ordered spousal maintenance limited in Texas? Texas is a community property state in which all community marital assets and liabilities are divided in a “just and right” manner on divorce by agreement or by a judge. The financial division on divorce is usually as close to fifty-fifty split.
HOW DO YOU BECOME ELIGIBLE FOR TEXAS ALIMONY.
In September 2011, Texas substantially changed the eligibility rules for court ordered spousal maintenance. The spouse must first prove that after the division of assets and liabilities there will not be enough property to meet his or her minimum reasonable needs. Minimum reasonable needs usually means the spouse’s monthly expenses. The spouse must also prove at least one of the following:
- the marriage has been for ten years or longer and the spouse made diligent efforts to either earn sufficient income or to develop necessary skills while the divorce is pending to meet his or her minimum reasonable needs; or
- the other spouse has committed family violence; or
- the requesting spouse is disabled; or
- a child of the marriage of any age has a disability that prevents the spouse who cares for and supervises the child from earning sufficient income.
A TIP ABOUT ASKING FOR COURT ORDERED MAINTENANCE IN TEXAS.
An unemployed spouse does not have a better chance of getting court ordered spousal maintenance. Unless there is either (1) family violence, (2) the spouse cannot work because of their disability or (3) a child of the marriage is disabled, the spouse must show they tried to earn income or prepare for gainful employment by getting training while the divorce is ongoing.
HOW MUCH CAN BE ORDERED TO BE PAID.
If the judge finds a spouse is eligible, the judge has to decide how much to order and for how long. In most cases, the upper limit of the amount is the difference between the spouse’s monthly expenses and that spouse’s income. Determining the amount is not a simple math equation. By law, the judge must also consider:
- each spouse’s financial resources after divorce (including separate property);
- how paying child support or spousal maintenance affects both spouses’ ability to pay their bills;
- one spouse’s contribution to the other’s education, training, or increased earning power;
- the age, employment history, earning ability, and physical and emotional condition of the requesting spouse;
- each spouse’s education and employment skills and how long it would take for the spouse asking for maintenance to get education or training;
- whether either spouse inappropriately spent community funds or disposed of community property during marriage (also called “fraud on the community”);
- homemaker contributions;
- marital misconduct of either spouse; and
- family violence.
THERE IS A MAXIMUM AMOUNT OF COURT ORDERED ALIMONY.
The cap on court ordered spousal maintenance in Texas is set by statute. The amount of spousal maintenance the judge orders a spouse to pay involuntarily cannot be more than $5000 per month or 20% of the paying spouse’s average monthly gross income, whichever is lower.
THE LIMITS ON HOW LONG COURT ORDERED SPOUSAL MAINTENANCE CAN BE ORDERED.
Court ordered maintenance must be limited to the shortest reasonable time that allows the receiving spouse to earn enough money to meet monthly expenses. The time can be longer if the spouse has a disability, is caring for an infant or young child, or there is some other compelling reason the spouse cannot provide for their minimum reasonable needs.
THERE ARE CAPS ON LENGTH OF TIME SUPPORT CAN BE ORDERED.
There are restrictions in the law for how long a judge can require a spouse to pay court ordered maintenance in Texas.
BASIS FOR AWARD LENGTH OF MARRIAGE MAXIMUM DURATION
Family Violence Less than 10 years No more than 5 years
Married 10+ years Between 10 and 20 years No more than 5 years
Married 10+ years Between 20 and 30 years No more than 7 years
Married 10+ years 30 years or more No more than 10 years
Disabled spouse N/A As long as spouse is eligible
Disabled child of marriage N/A As long as spouse is eligible
THERE ARE OPTIONS IN HOW TO ENFORCE A COURT ORDER TO PAY ALIMONY.
It is very important to understand that even if a spouse is successful in persuading a judge to award court ordered maintenance, it still is not a done deal. The paying spouse can come back to court later and ask for a reduction or elimination if there is a substantial change in receiving spouse’s ability to meet monthly expenses or of the paying spouse’s ability to pay.
In the next part of this 2 part post, I will write about contractual spousal support or contractual maintenance. If you have any questions about this topic, please call our office at 972-772-6100 to schedule a no-cost initial consultation.