Spousal Support (Alimony) in Texas

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Spousal Support (Alimony) in Texas

In Texas, spousal support can be divided into three categories: temporary spousal support, spousal maintenance, and alimony. There are strategic reasons for using each one of these. Temporary spousal support is available while the divorce is pending and can be used to offset the ultimate division of marital estate upon divorce. Spousal maintenance has strict legal criteria to obtain it. If a spouse qualifies for spousal maintenance, it can be enforced through income withholding and jail time. Alimony is a contractual agreement between the spouses that is not mandated by law and therefore cannot be enforced through income withholding or jail time.

Temporary Spousal Support in Texas

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 spousal support in Texas must not object to the existence of a valid marriage. Temporary spousal 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 spousal 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.

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 spousal support will be granted. Temporary spousal support expires upon the entry of a final decree. Temporary spousal support paid during the pendency of the divorce and a spouse’s failure to make temporary spousal 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 spousal 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 spousal support payments may result as be counted as property awarded to the guilty litigant when the court makes the final property division. Hudson v. Hudson.

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Spousal Maintenance in Texas

In Texas, 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 in Texas

Eligibility for spousal maintenance in Texas is much more narrowly tailored than it is for temporary spousal 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, or

The spouse seeking maintenance either:

    1. Need-Based. Married at least 10 years and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs;
    2. Spousal Disability. Unable to earn income sufficient to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability; or
    3. 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. Texas Family Code §8.051

Eligibility for spousal 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. One court found that a spouse seeking spousal 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. See Slicker v. Slicker. Another court found that a 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” See Deltuva v. Deltuva. 

Spousal Support and Spousal Maintenence in Texas FAQs

How much Spousal Maintenance (Alimony) can you get?

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. 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.

How long can you get Spousal Maintenance?

The maximum duration for spousal maintenance in Texas depends on the length of the marriage, UNLESS the spouse seeking maintenance is disabled or cannot work because he/she is caring for a disabled child. Texas Family Code §8.054

Maximum Duration for Spousal Maintenance

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.

Can Spousal Maintenance be terminated?

Yes, an obligation to pay spousal maintenance terminates upon either parties’ death or when the obligee remarries. 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.

Can Spousal Maintenance be modified?

Yes, 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 §8.506.

How do I show material and substantial change in circumstance to modify Spousal Maintenance?

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.

Can Spousal Maintenance be enforced?

Yes, if the spousal maintenance orders 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.

Alimony in Texas

Alimony is a contractual agreement to pay spousal support, not a court-ordered obligation. 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.

When a court order incorporates an agreement to pay spousal maintenance or spousal support but does not meet the legal criteria for spousal maintenance criteria, 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