When married couples divorce, both partners may not have the same ability to earn the income necessary to provide for their basic needs after the split. One spouse may not have pursued a career during the marriage or may have other impediments that limit income-earning potential. ‘Alimony’ in Texas refers to some type of financial support to be paid by one spouse to the other during the divorce process and for a period of time thereafter. The Texas Family Code governing dissolutions of marriage does allow one spouse to seek financial support from the other under certain circumstances.
Spousal Maintenance in Texas
Texas statutes don’t officially use the term ‘alimony’ to refer to payments made by one spouse to the other after divorce. Texas calls spousal support payments ‘maintenance.’ Maintenance is defined as “an award in a suit for dissolution of marriage of periodic payments from the future income of one spouse for the support of the other spouse.”
Eligibility for Spousal Maintenance in Texas
Eligibility for spousal maintenance is based on need. An award of spousal maintenance is only available if the requesting spouse will not have enough property after the divorce to provide for ‘minimum reasonable needs’ and one of the following situations exists:
- The responding spouse was prosecuted for a criminal act that constitutes family violence within two years of the divorce being filed or during the divorce proceedings.
- The requesting spouse is unable to earn sufficient income to provide for minimum reasonable needs due to physical or mental disability.
- The spouses were married for ten or more years, and the requesting spouse lacks the ability to earn enough income to meet minimum reasonable needs.
- The requesting spouse is the custodian of a child of the marriage who requires substantial care and supervision due to physical or mental disability, which prevents the caregiver from being able to earn sufficient income.
It is important to be aware that circumstances arising after the marriage is terminated cannot be grounds for an award of spousal maintenance.
What Are ‘Minimum Reasonable Needs?’
There is no hard and fast rule about minimum reasonable needs. What constitutes minimum reasonable needs for one person may not be the same as what constitutes minimum reasonable needs for another. The Texas Family Code does not offer any guidance and Texas courts have said the minimum reasonable needs of a particular individual are to be determined on a case-by-case basis.
Courts in Texas have determined that eligibility for an award of maintenance does not require a spouse to liquidate all available assets, spend down long-term assets, or incur debt in order to meet short-term living expenses.
How Much Spousal Maintenance Can You Get in Texas?
The maximum amount of financial support a spouse can receive is $5,000 a month. The statute says the “lesser of” $5,000 or 20% of gross income. If 20% of a spouse’s gross income is less than $5,000, the lesser amount would be the maximum the spouse could be ordered to pay, subject to other relevant factors.
For spousal maintenance purposes, gross income includes income actually received but does not include most benefits received from government assistance programs. Interestingly, maintenance, alimony, and unemployment benefits received by a spouse are considered gross income to that spouse.
How the Amount of Alimony is Determined
Once it has been decided that a spouse is eligible to receive maintenance, the exact amount and duration of payments need to be determined. Any relevant factor can be considered, including any of the following as described by Texas statutes:
- Ability to provide for minimum reasonable needs independently
- Education and employment skills and the feasibility of obtaining education or training
- Length of marriage
- Age, earning ability, and physical and mental condition
- Unscrupulous acts with regard to jointly owned property
- Opportunities foregone by one spouse in support of the other
- Amount of property owned separately
- Contributions as a homemaker
- Marital misconduct, such as adultery or cruelty
- Any history or pattern of family violence
Spousal Maintenance Is Not a Free Ride
Financial support is not awarded to one spouse as a punishment against the other. A requesting spouse is not entitled to maintenance if they don’t put in an expected level of effort. For example, if they are capable of earning enough income to meet their minimum reasonable needs or acquiring the necessary education and training but simply choose not to make the effort, they cannot receive spousal maintenance.
The Duration of Spousal Maintenance Payments
The primary purpose of spousal maintenance is to provide financial support for one spouse while they get back on their feet. Unless exceptional circumstances exist, the duration of spousal support is limited to a period of years that depends on the length of the marriage.
Maintenance payments are limited to 5 years if the couple is married less than 10 years and one party is prosecuted for family violence within 2 years. This also applies if the couple is married for more than 10 years but less than 20. If they are married between 20 and 30 years, the spousal maintenance payments are paid for only 7 years. When a marriage has lasted over 30 years, the payments are made for only 10 years.
However, if a spouse qualifies for maintenance due to physical or mental disability or as a caregiver for a disabled child, spousal maintenance can continue as long as the eligibility requirements are met.
What Terminates an Obligation to Pay Alimony?
In addition to the end of the specified time period, an obligation to pay maintenance will terminate upon the death of either spouse or if the receiving spouse remarries. A court may also terminate alimony payments if it finds the receiving spouse has not remarried but is living in a marriage-like, long-term relationship. Termination of future support payments does not terminate the obligation to make any payments that were in arrears at the time of termination.
Modification of a Spousal Maintenance Order
The paying spouse may file a motion with the court requesting modification of a spousal maintenance order. Modification will be granted if a ‘material and substantial change in circumstances’ can be shown since the maintenance was ordered.
Any modification will only apply going forward, and neither the amount of the spousal maintenance payments nor the duration of payments can be increased beyond what the original order allows.
Enforcing a Texas Order of Spousal Maintenance
An obligor who does not make spousal maintenance payments as ordered by a court is in contempt. The person awarded the payments may petition the court and receive a judgment against the obligor for any unpaid amounts. The judgment may be enforced by any means available.
The obligor who really can’t afford to pay may have an acceptable excuse in contempt proceedings. Texas considers it an affirmative defense if an obligor can prove:
- Lack of ability to provide the amount of maintenance ordered
- Lack of property sufficient to raise the necessary funds
- Inability to borrow the money needed
- No knowledge of any source for obtaining money legally
How to Get the Financial Support You Need to Move Forward After a Divorce
Financial stability can be significantly affected during and following a divorce. One spouse may be left financially devastated and not have the immediate ability to generate enough income to provide for the basic needs of living. Awards of spousal maintenance help a less financially able spouse meet day-to-day living expenses for a period of time after divorce.
The Pearland, Texas law office of Terry & Roberts helps families going through the difficult life changes that accompany a divorce. The dedicated and compassionate divorce attorneys at Terry & Roberts advocate aggressively so clients get what they need to succeed as they move forward with their lives. Contact us to schedule a consultation today.