In Texas, spousal maintenance ("alimony") is additional money (not part of a division of marital property or child support) that one spouse pays to the other temporarily from future income to support the ex-spouse after the divorce. If this money is also paid before the divorce is finalized, it is called “temporary spousal support”. Whether a former spouse receives alimony is more than an economic question. It is one of the trickiest emotional issues of divorce.
Financial discussions during divorce can be difficult. A spouse who who does not make as much money as the other, lacks a college degree, or who has been out of the work force for some time raising the children and is facing a challenging job market often requests alimony. That spouse may feel deserving of compensation after divorce for sacrificing his or her own education and job to raise the family and support the other’s career. For the spouse contemplating paying alimony, it can be equally challenging to think about supporting the ex-spouse over and above child support and the divorce settlement if the ex did not contribute earnings during the marriage.
On top of these personal concerns, alimony gets tricky because people do not know the alimony laws. A skilled mediator, however, knows there are tax advantages to alimony. Alimony can be an attractive and creative settlement tool in mediation that can keep more money in the family's collective pocket and out of Uncle Sam's.
Court Ordered and Contractual Maintenance
Texas has two types of spousal maintenance (alimony): “court ordered” and “contractual”.
Court Ordered Maintenance
“Court ordered spousal maintenance” is the kind a family judge can order a spouse to pay involuntarily. But just because the law provides for it does not mean it is easy to get, that it will be a large amount of money, or it will last forever. To the contrary, the eligibility requirements for court ordered spousal maintenance are high, the amount and duration are restricted, and it can be changed or eliminated later.
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 a judge, unless the spouses reach their own division by agreement themselves. In community property states like Texas, the financial division on divorce is usually as close to fifty-fifty asset by asset whenever possible, or if an asset cannot be divided, then it is offset by a different asset of equivalent value that is given to the other spouse. Generally, wages, bonuses, and income are divisible community property in Texas whether there is one breadwinner in the family or two. That means the court does not give all the money only to the spouse who earned it, and a homemaker is not penalized in the community property division for not working outside the home. For this reason, some see Texas’s community property laws as “protecting” a non-working or lower wage earning spouse on divorce.
The policy in Texas and the United States is it is in everyone’s best interests for as many people as possible to be employed. The theory is court ordered spousal maintenance creates a disincentive for a divorcee to return to gainful employment. That is one of the reasons the Texas legislature makes it tough for a spouse in Texas to get court ordered spousal maintenance.
How to Get Court Ordered Spousal Maintenance in Texas
Eligibility. In September 2011 Texas substantially changed the eligibility rules for court ordered spousal maintenance. Under the new law the spouse must first prove that after divorce (meaning after the division of assets and liabilities) there will not be enough property (including separate property) to meet his or her minimum reasonable needs (which usually means the spouse’s monthly expenses). After proving that, 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 has an incapacitating disability; or
- a child of the marriage (of any age) has a physical or mental disability that prevents the spouse who cares for and supervises the child from earning sufficient income.
Tip for Court Ordered Spousal Maintenance in Texas: It is a common misconception in Texas that a spouse will have a better chance of getting court ordered alimony if he or she is unemployed so the divorcing spouse quits or does not look for work. That is not the law! Unless there is family violence, or the spouse asking for alimony cannot work because of his or her own disability or that of a child of the marriage, the spouse (in a marriage for ten years or longer) must be able to show he or she tried hard to earn income or to prepare for gainful employment by going back to school or getting training to develop skills for work while the divorce is ongoing.
Amount. If the judge finds a spouse is eligible for court ordered spousal maintenance, 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, but that does not end the question. 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.
Maximum Court Ordered Spousal Maintenance in Texas. The cap on court ordered spousal maintenance (alimony) 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.
Length of Court Ordered Spousal Maintenance in Texas.Generally, court ordered maintenance must be limited to the shortest reasonable time that allows the receiving spouse to earn enough money to meet monthly expenses unless the spouse has a mental or physical disability, is caring for an infant or young child, or there is some other compelling reason the spouse cannot provide for his or her minimum reasonable needs.
Caps on Duration. 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 | Betwee 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 |
Enforcement. It is very important to understand that even if a spouse is successful in persuading a judge to award court ordered maintenance, and even though the court can enforce that order by contempt (fine or jail time), it still is not a done deal. The paying spouse can come back to court later and ask for the amount he or she pays to be reduced or eliminated entirely if there is a substantial change in receiving spouse’s ability to meet monthly expenses or of the paying spouse’s ability to pay. Again, spousal maintenance is not favored in Texas, and because it can be modified or eliminated, it is not a sure bet.
Please take all of these factors into consideration if you are thinking about pursuing court ordered alimony. As in everything, you must weigh the potential benefits against the potential risks as you navigate through a divorce. For this particular issue, you must ask yourself whether the cost in terms of money, stress, and potential damage to the future relationship with your child’s co-parent of fighting for the court to force your spouse to pay court ordered maintenance will exceed the amount a judge may award or be worth it in the long run? If not, read on, because there is another spousal maintenance in Texas called “contractual maintenance”.
Contractual Maintenance
The other kind of post-divorce spousal maintenance in Texas is “contractual maintenance”. It is voluntary and paid according to an agreement between the spouses as to how much it will be and how long it will last. There are no legal eligibility requirements. If there are financial resources to do so, most commonly divorcing couples use contractual alimony to establish a required monthly stream of income (usually in addition to child support) for a self-employed, unemployed, or underemployed spouse at the time of divorce to qualify for a new mortgage loan to buy a house or to refinance the current home into his or her own name.
Stay at home parents or nonworking spouses frequently ask for assistance for a period of time from their spouses to help with tuition or educational expenses through contractual alimony if they want or need to return to school to establish or enhance a career, provide for themselves, and contribute more money toward children’s needs.
However, there is no guarantee for contractual maintenance either. If a spouse who has agreed to pay contractual maintenance fails to do so, the family court may not enforce by contempt (fine or jail time) an agreement to pay for any time beyond the period the court could have ordered under the laws for court ordered spousal maintenance (see above).
Termination of Maintenance. No matter whether the maintenance is court ordered or contractual, it will end if either spouse dies. Under the law in Texas, it will also end if the spouse receiving the maintenance remarries or lives with someone in a dating or romantic relationship on a continuing basis (unless the parties agree otherwise).
Tip for a Spouse Seeking Contractual Alimony: Spouses seeking contractual alimony in Texas can avoid making a costly strategic error by getting complete information about the family finances before deciding how much alimony to request. A spouse should make sure he or she knows how much money there is to go around before jumping the gun out of fear and demanding an unreasonably high amount of contractual spousal maintenance (alimony).
If the demand is above the available resources or is outside the legal parameters for court ordered spousal maintenance, doing so almost always causes the other spouse not only to get mad, but often to seriously question the ability of the requesting spouse to make sound financial choices in the future. Too high a demand for contractual maintenance also frequently erodes the requesting spouse’s bargaining and negotiating power. When that happens, the spouse who was feeling scared about supporting him or herself after divorce will have an even harder time being comfortable negotiating division of assets.
The distrustful spouse may now feel the need to protect assets and keep them in his or her control rather than to have them in the hands of the other spouse who (rightly or wrongly) may appear unable to understand the financial picture and/or to manage money well. Impulsive, premature, uninformed actions and demands can jeopardize your credibility. Outright refusal to consider alimony can have the same result. For these reasons it is important to begin the actual negotiations of the property division, child support, and alimony only after everyone has complete information, understands the law, and has explored all options.
Spouses seeking spousal maintenance ("alimony") in Texas must consider the financial picture, and take account the tax implications and the emotions alimony brings up for everyone involved. A mediator can help to sort through these elements so the spouses can have a calm discussion about alimony and reach a reasonable agreement.