Alimony can be a difficult legal concept to understand. Most people think of alimony as court-ordered financial support that one spouse pays to the former-spouse after the divorce. However, under current Texas law, there is no such thing as court-ordered alimony. Under Texas law, alimony is referred to as temporary spousal support, spousal maintenance, or contractual alimony. Some common questions regarding alimony are what it is, who gets it, how it is calculated, how it is enforced, and what are the differences between the three types of alimony. This article will answer the common questions stated above.
1. What is Alimony?
In Texas, ‘alimony’ comes in three forms.
- The first type, referred to as ‘(temporary) spousal support’ allows a spouse to receive financial support based on what the court holds to be necessary and reasonable before entering a final divorce decree. This support is paid by one spouse to the needing spouse until the divorce is final. Sometimes, this obligation is terminated even before then depending on the circumstances.
- The second type of spousal support is through contract. This type of alimony, referred to as ‘contractual alimony’ allows both spouses to agree to payments of financial support as part of the divorce decree. This type of spousal support is often an appealing option for both parties who are trying to settle their divorce because it allows for more flexibility on the amount and frequency of payments. Furthermore, this option allows one spouse to have a source of monthly income for an agreed amount of time after the divorce while allowing the other spouse to receive a tax deduction for such monthly payments.
- The third type of spousal support is referred to as ‘spousal maintenance’. This type of financial support (like the second type) allows a spouse to receive periodic payments from the former spouse’s income after the divorce is finalized. However, the difference is that spousal maintenance is a court ordered payment. Further spousal maintenance can only be ordered in certain limited circumstances which will be discussed in detail below.
2 . What is Spousal Maintenance?
Under the Texas Family Code Chapter 8, spousal maintenance is defined as a award in a divorce, annulment, or suit to declare the marriage void from the future income of one spouse for the support of the other spouse. Unmarried cohabitants are not eligible for spousal maintenance payments. The purpose of spousal maintenance is to provide temporary support for a spouse who lacks the ability to support himself or herself. However, it is important to stress that spousal maintenance can only be ordered in limited circumstances.
3. Who is Eligible for Spousal Maintenance?
To be eligible for spousal maintenance a requesting spouse must show that he or she lacks sufficient property to provide for his or her minimum reasonable needs. Click here to read more about these factors.
It is important to note that unless the spouse seeking maintenance has a physical or mental disability, by statute it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in seeking suitable employment or developing necessary skills to become self-supporting while the spouses are separated and the divorce suit is pending. Proof that one spouse has been looking for employment could be resume(s), proof of job interviews, proof of enrollment in school, etc.
Quick Tip : If there is a disability that occurs after the divorce is final, this is not a circumstance in which a Texas court would allow for spousal maintenance.
4. How Does the Court Calculate Spousal Maintenance/Support?
If a Texas court determines a former spouse is eligible for spousal support, the court then determines the amount and duration of the support by considering certain relevant factors.
These relevant factors include:
- The financial resources of both spouses;
- The education and employment skills of both spouses;
- Time and effort required for the spouse seeking support to acquire sufficient education or skills to support herself or himself;
- The length of the marriage;
- Age of the spouse(s);
- Employment history;
- The earning ability and the spouse’s ability to pay;
- The health of the spouse seeking support;
- The ability of the spouse from whom support is sought to provide for his or her needs;
- Amount of child support being paid;
- A spouse’s contribution as a homemaker; and
- The financial conduct or misconduct of the spouses.
5. How Long Will Spousal Maintenance Last?
Under Texas policy, courts are required to limit spousal maintenance to the shortest reasonable time period and may not order maintenance to last longer than ten years unless there is a disability.
It is important to understand the duration of spousal maintenance is determined by two factors. Spousal maintenance can be ordered indefinitely if the spouse is unable to work due to a physical or mental disability or if the spouse seeking support is the caretaker of a child with a physical or mental disability. It is important to note a mental or physical disability allows a court to extend spousal maintenance indefinitely, and there is no duration limit for spousal maintenance. The second type deals with the length of the marriage. Under Texas law there are statutory limits on duration on these types of payments. If the duration of the marriage is ten years, the requesting spouse is eligible for up to five years of support. Further, the spouse is eligible for five years of support if the spouse is a victim of family violence. If the duration of the marriage is twenty to thirty years, the requesting spouse is eligible to seven years of maintenance. For 30 or more years of marriage, the requesting spouse is eligible for the possibility of ten years of payments. In addition, it is important to note maintenance can be terminated in certain circumstances. Spousal maintenance terminates on the death of either party or the new marriage or cohabitation of the spouse who receives maintenance.
Under Texas law there is a limit to the amount of spousal maintenance a court can order. A paying spouse cannot be obligated to pay more than $5,000 or 20% of his or her income (whichever amount is less). Income included in this amount is everything one can think of such as wages, overtime, retirement, however income does not include veteran benefits, or social security.
6. How is Spousal Support Enforced?
There is a distinction between enforcement of a spousal maintenance and enforcement of contractual alimony. Unlike spousal maintenance and temporary spousal support, contractual alimony cannot be enforced by contempt. Spousal maintenance can be enforced by wage withholding orders while contractual alimony cannot, unless the contract in the divorce decree specifically provides for this. Furthermore, once contractual alimony is finalized, the provisions in the final decree are enforceable under Texas contract law.
Under contract law in Texas, contractual alimony cannot be modified the same way as spousal maintenance. Spousal maintenance can be modified by to either terminate or reduce payments by a requesting party. However, the requesting party must show since the divorce decree has been entered there has been a substantial and material change in circumstances, whereas contractual alimony can only be modified by the agreement. Some contractual spousal support agreements allow for modification through written consent of both parties, (i.e. a new contract).
As discussed above, spousal maintenance can be enforced two ways, either court ordered contempt or a money judgment. In addition, there are certain defenses available to spousal maintenance that are not available for contractual alimony. For example, under Texas law for there are a number of defenses available for spousal maintenance such as: the spouse paying support lacked the ability or property to make payments, or is unable to borrow funds and has no other financial means to make such maintenance payments. However, these defenses are not available for contractual spousal support, and the only defenses available are modern day contract defenses. If a spouse has not paid on the contractual alimony the spouse can sue to enforce the contract.