Texas Maintenance, Spousal Support and Alimony

INFORMATION ABOUT MAINTENANCE AND ALIMONY IN TEXAS DIVORCE

By Cordell & Cordell Attorney Sally Pretorious

The idea of spousal maintenance usually raises an eyebrow among many men going through divorce. This article is intended to alleviate some of the anxiety that can be created regarding the potential of paying spousal maintenance.

Texas has strict eligibility requirements as well as limitations for spousal maintenance. This article will outline the basics of spousal maintenance, including eligibility, the nature, amount, duration and manner of spousal maintenance payments.

ELIGIBILITY FOR SPOUSAL MAINTENANCE AND ALIMONY IN TEXAS

In Texas, there are two main ways that a spouse can qualify for a court order granting spousal maintenance.

The first way to qualify is if the spouse from whom maintenance is being sought has been “convicted or received deferred adjudication for a criminal offense,” which under specific Texas laws constitutes family violence. This act must occur within two years from a suit for divorce or while a suit for divorce is pending.

The second way that a spouse can qualify for spousal maintenance is if the marriage lasted at least 10 years, if the spouse who is seeking maintenance lacks property  to “provide for their minimum reasonable needs,” and if one of three qualifications are met:

i) the requesting spouse has an incapacitating physical or mental disability and is therefore unable to support themselves;

ii) has custody of a child who requires “substantial care and personal supervision because a physical or mental disability,” and as a result the spouse cannot be employed outside the home, or

iii) if the spouse does not have an earning ability that will allow them to provide for their “minimum reasonable needs.”

NATURE, AMOUNT AND DURATION OF MAINTENANCE PAYMENTS IN TEXAS

Once the court has determined if a spouse is eligible to receive spousal maintenance because they have qualified in one of the two ways specified above, then the court will determine the nature, amount, duration and manner of the spousal maintenance payments.

In determining the aforementioned, the court will look to all relevant factors, but more specifically will hear evidence and look to several factors provided by Texas law regarding the spouse seeking spousal maintenance.

These statutory factors include the maintenance seeking spouse’s: financial resources, separate property, education and employment skills, time to get sufficient education or training, duration of the marriage, age, employment history, earning ability, physical and emotional conditions, ability to meet “needs”, contributions as homemaker, and marital misconduct.

The court may also consider several factors that involve both spouses, such as: excessive or abnormal expenditures, comparative financial resources, and the contribution to the education, training or increased earning capacity of one spouse.

However, there is a presumption in place. The court will presume that spousal maintenance is not warranted. This presumption can be rebutted by the spouse seeking maintenance by a showing that the spouse seeking maintenance was diligent in either seeking employment or developing the skills to become “self-supporting.”

However, please note that the presumption that spousal maintenance is not warranted, does not apply if the spouse has an incapacitating physical or mental disability or is the custodian of a child who requires substantial care and personal supervision because of a physical or mental disability.

Typically a maintenance order will be limited to three years and/or the “shortest reasonable period” for the maintenance seeking spouse to meet their minimum reasonable needs. This can be accomplished by developing the necessary skills or getting a sufficient job.

Once again there are some exceptions to this duration limitation including the same reasons which are stated above for rebutting the presumption against spousal maintenance, as well as a few other additional exceptions.

Furthermore, spousal maintenance will terminate on the death of either party or the remarriage of the spouse receiving support.

However, spousal maintenance can be modified to a lesser amount, by filing a motion with the court and a showing that there has been a material and substantial change in one of the parties’ situations.

The amount of the spousal maintenance should provide for the minimum reasonable needs of the spouse seeking support but should be calculated as the lesser of either $2,500 or 20% of the paying spouse’s monthly gross income.

Courts may order the payment for spousal maintenance be automatically withheld from disposable income of the paying spouse.

If a spouse is ordered to pay spousal maintenance and fails to do so, the court may enforce a maintenance order by contempt or ordering arrearages to be paid.

However, there are several affirmative defenses that are available for a spouse which may be asserted in response to an allegation that they have not paid their spousal maintenance or allegation of contempt.

The law in Texas with respect to domestic litigation is complicated and the court system can be difficult to maneuver.

This article is only a brief review of some of the laws in Texas relating to spousal maintenance and is not meant as a substitute for the advice of counsel. It is important to consult an attorney in each case before taking any action.