Temporary Spousal Support
In Texas, each spouse has a legal duty to support the other spouse (spousal support). To this end, the Court may make temporary orders requiring the support to be paid to the other spouse during the pendency of a divorce. The person seeking temporary support must not object to the existence of a valid marriage. Temporary support is based on the applicant’s needs and is intended to provide for the spouse’s necessary expenses until the final decree. The amount of temporary support is based on (1) the degree to which the applicant is unable to pay for his/her necessities during the pendency of the suit, and (2) the ability of the other spouse to pay. In re Fuentes, 506 S.W. 3d 586, 593-594 (Tex. App.—Houston[1st Dist.]2016, orig. proceeding) and Russell v. Russell, 79 S.W.2d 639, 640(Tex. Civ. App.—Fort Worth 1934, writ dism’d w.o.j.)
Evidence of each spouses’ salaries and other sources of income, assets, and prior obligations, as well as factors affecting earning ability, such as health, age, and education, are all factors to be considered in determining whether temporary support will be granted. Temporary support expires upon the entry of a final decree. Temporary support paid during the pendency of the divorce and a spouse’s failure to make temporary support payments as ordered may be considered by the Court in the final just and right division of property between the spouses.
In Texas, a spouse may qualify for temporary support but not spousal maintenance because the factors to qualify for each are different. Strategically, it is important to be aware of the possibility that a spouse may attempt to prolong the divorce process to maintain favorable support payments that they will not otherwise be entitled to after the divorce. When this is the case, excessive support payments may result as be counted as property awarded to the guilty litigant when the court makes the final property division. See Hudson v. Hudson, 308 S.W. 2d 140, 142 (Civ. App.—Austin 1957, no writ).
Spousal maintenance is not the same thing as temporary spousal support.As explained above, temporary spousal support is to provide for the necessary expenses of a spouse during the pendency of the divorce.Spousal maintenance is a monetary award to one spouse after the divorce is granted for periodic payments for the support of that spouse from the future income of the other spouse.
Eligibility for spousal maintenance is much more narrowly tailored than it is for temporary support.A court may order a spouse to pay spousal maintenance if the other spouse will lack sufficient property, including the spouse’s separate property, upon divorce to provide for the spouse’s minimum reasonable needs AND one of the following applies:
- Family Violence.A spouse from whom maintenance is requested was convicted or received deferred adjudication for a family violence crime committed during the marriage against the other spouse or other spouse’s child and the offense occurred (a) within 2 years before the divorce suit was filed, or (b) while the divorce was pending.
- The spouse seeking maintenance either:
- Need-Based.Married at least 10 years and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs [Tex. Fam. Code §8.051(2)(B)];
- Spousal Disability. Unable to earn income sufficient to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability [Tex. Fam. Code §8.051(2)(A)]; or
- Child Disability.Is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning an income sufficient to provide for the spouse’s minimum reasonable needs [Tex. Fam. Code §8.051(2)(C)]
Eligibility for maintenance is determined at the time of divorce and not whether he/she will be able to provide for his/her “minimum reasonable needs” at some point in the future with additional training or education.Slicker v. Slicker, 464 S.W.3d 850, 863(Tex. App.—Dallas 2015, no pet.)(holding spouse seeking maintenance who had been out of the workforce since 1974 and had taken one computer course and signed up for another lacked the ability to earn sufficient income) and Deltuva v. Deltuva, 113 S.W.3d 882, 888(Tex. App.—Dallas 2003, no pet.)(finding spouse seeking maintenance who obtained real estate license but needed about one year to get her real estate business “rolling” lacked ability to earn sufficient income”).
“Will Lack Sufficient Property”
Even if a spouse is awarded valuable assets as part of the property division, that spouse may still lack sufficient property to provide for the reasonable minimum needs if the spouse’s monthly expenses exceed monthly income.Diaz v. Diaz, 350 S.W.3d 251, 254-255(Tex. App.—San Antonio 2011, pet. denied)(holding wife who was awarded house and two cars was entitled to spousal maintenance because her income from janitorial business was not enough to cover her home mortgage payments, notes on cars, homeowner’s insurance, property taxes, and other living expenses).However, the spouse in need is not required to acquire debt in order to meet the monthly expenses.However, spousal maintenance should not be granted to a spouse when that spouse’s income exceeds his/her minimum reasonable needs.
“Minimum Reasonable Needs”
There is no statutory definition of “minimum reasonable needs” and each case is fact-specific.Courts look to evidence like a spouse’s abilities, education, mortgage concerns, business opportunities, etc. in determining the spouses’ “minimum reasonable needs”.Courts have held that the federal minimum wage is not necessarily enough to provide for the “minimum reasonable needs” of an individual or family.On the other hand, evidence of a spouse’s pre-divorce standard of living should not be considered in determining “minimum reasonable needs.”
The amount that a court can order a spouse to pay in spousal maintenance has been capped statutorily under Texas Family Code §8.055.After September 1, 2011, a court may not order maintenance that requires the obligor to pay monthly more than the lesser of: (a) $5,000 or (b) 20 percent of the spouse’s average monthly income.
Texas Family Code §8.055 defines “gross income” to include:
- 100% of all wage and salary income
- Interest, dividends, and royalty income
- Net rental income, and
- All other income actually received (including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes, regardless of source, gifts and prizes, maintenance and alimony
“Gross income” does not include:
- Return of principal or capital,
- Accounts receivable,
- Benefits paid in accordance with public assistance programs,
- Benefits paid in accordance with the Temporary Assistance for Needy Families program,
- Payments for foster care of a child,
- Department of Veterans Affairs service-connected disability compensation,
- Supplemental security income (SSI), social security benefits, and disability benefits, or
- Worker’s compensation benefits.
Courts frequently consider the requesting spouses’ monthly expenses, income, and any shortfall in determining how much to award in spousal maintenance, however, a court is not required to entirely eliminate a shortfall.
The maximum duration for spousal maintenance is addressed in Texas Family Code §8.054 and is directly correlated to the length of the marriage, UNLESS the spouse seeking maintenance is disabled or cannot work because he/she is caring for a disabled child.
Effective September 1, 2011, the maximum durations are as follows:
Maximum Duration Maintenance
Length of Marriage
Spousal Maintenance Awarded
Less than 10 years
Based off Family Violence
At least 10 years, less than 20 years
Based off Need
At least 20 years, less than 30 years
Based off Need
More than 30 Years
Based off Need
Under Texas Family Code 8.054, the court is required to limit the duration to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for his/her own “minimum reasonable needs,” unless the spouse’s ability is substantially or totally diminished for one of the following reasons (a) physical or mental disability of the spouse seeking maintenance, (b) duties as the custodian of an infant or young child of the marriage, or (c) another compelling impediment to earning sufficient income to provide for the spouse’s “minimum reasonable needs.”
When a spouse or child is disabled, the “shortest reasonable period” requirement does not apply and the court may order maintenance for as long as the spouse continues to satisfy the eligibility criteria.In this instance, it is important that an attorney take special care in drafting the final decree because the decree language will determine whether the obligee may seek continued maintenance under the disability based criteria or have capped durations under the family violence and need-based criteria.
Termination– Texas Family Code §8.506
An obligation to pay spousal maintenance terminates upon either parties’ death or when the obligee remarries. Texas Family Code §8.506 (a).If the court finds that a oblige cohabits with another person with whom the obligee has a dating or romantic relationship in a permanent place of abode on a continuing bases, the court must terminate the maintenance obligation.Texas Family Code §8.506 (b).
Spousal maintenance orders can be modified by filing a motion to modify with the court that rendered the order.The party seeking modification must show a material and substantial change of circumstances of either party under the factors set out in Texas Family Code §8.052.In order to show a material and substantial change in circumstances, the party seeking modification must show evidence that (1) the present financial status of both parties, and (2) the financial circumstances of the parties at the time the existing support order was rendered.If a party fails to show the prior financial circumstances of the parties, the court has no evidence to base the material and substantial change requirement on and the motion to modify will be denied. A modification cannot grant a retroactive modification to payments accruing before the motion to modify was filed, so it is extremely important to file your motion to modify as soon as the circumstances arise that require the modification.
Enforcement of spousal maintenance orders that comply with Texas Family Code Chapter 8 requirements can be accomplished through contempt (jail) proceedings, money judgments, and income withholding.Spousal maintenance orders that comply with Texas Family Code Chapter 8 are better than contractual alimony orders that are not enforceable by contempt (jail) proceedings or income withholding.
When an order incorporates an agreement to pay spousal maintenance or support but does not meet the spousal maintenance criteria under family violence, needs-based, spousal disability or child disability as described above, the agreement creates a debt that is enforceable as a contract but it DOES NOT CREATE A COURT-ORDERED OBLIGATION that is enforceable by contempt or income withholding.In this regard, alimony is far less desirable than spousal maintenance in terms of enforcement—because the law makes it is easier to collect on spousal maintenance than it does on alimony.On the other hand, if a party has sufficient assets that can be seized to satisfy a money judgment, alimony can be an effective tool to achieving resolution in a divorce where the asset division, earning potential or other issues make it difficult for the parties to effectuate a just and right division of the marital estate.