Temporary Spousal Support
Spousal Support in Texas is awarded on a temporary basis while a divorce suit is pending. It provides income to a financially dependent spouse during the divorce as the parties work on a financial resolution.
Temporary spousal support stems from the duty to provide a spouse with essentials like food, clothing, and shelter during marriage. Consequently, the court can consider temporary spousal support when dividing the spouses’ community property. The spouse providing support is entitled to reimbursement from their community estate.
To receive temporary spousal support, the requesting spouse must prove:
- the parties have a valid marriage,
- he or she is unable to pay for necessary expenses, and
- the other spouse can afford to pay the amount of spousal support sought
If the spouse receiving temporary spousal support still cannot pay for necessary expenses at the final hearing/trial, they should consider requesting spousal maintenance for a period of time post-divorce.
Post-Divorce Spousal Maintenance
Post-Divorce Spousal Maintenance is a relatively new thing in Texas. Until 1997 Texas did not have any law governing spousal support. The Texas Legislature’s goal in passing the law was to prevent a spouse from needing welfare or becoming a state ward.
In September 2011, the Texas legislature revised the law, altering the eligibility rules for court-ordered spousal maintenance.
In Texas, spousal maintenance is money that one spouse pays to the ex-spouse for a period of time after the divorce. Post-divorce spousal maintenance is something a family law judge can order a spouse to pay involuntarily depending on if the other spouse meets certain eligibility factors under the Family Code.
Keeping in mind the original intent of the legislature in many cases judges are reluctant to grant an award of spousal maintenance after a divorce. Before a judge will grant an award of post-divorce spousal maintenance the requesting party will:
- Have to plead for it (ask for it in their pleading filed with the court
- Demonstrate a lack of property to meet their minimum reasonable needs (if there is substantial marital property like bank account funds, retirement, etc., they are less likely to need spousal support).
- In most cases the party asking for post-divorce spousal support will be required to have to have been married to you for at least 10 years or longer
- In most cases, the party requesting post-divorce spousal support must have been married to you for at least 10 years or more.
- The requesting party must demonstrate they have made a diligent effort to earn sufficient income or develop skills to do so
Other reason a spouse can ask for post-divorce spousal support include:
- 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
Duration of Spousal Support
If the court awards an ex-spouse maintenance due to an incapacitating disability under the family code, it can order the payment of spousal maintenance. This continuation depends on the spouse consistently meeting the eligibility criteria outlined in the relevant provisions.
How much Spousal Maintenance
To calculate how much to award in spousal maintenance the court will first determine what an ex-spouse’s reasonable needs are.
Things that a Judge must consider when deciding how much to award in post-divorce spousal maintenance include:
- the financial resources of each spouse after divorce (including separate property);
- what effect paying child support or spousal maintenance will have on 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 the time it takes 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
- homemaker contributions;
- marital misconduct of either spouse; and
- family violence.
The court cannot award more than $5,000 or 20% of the paying party’s average gross monthly income, whichever is less.
Another form of post-divorce spousal maintenance in Texas is “contractual maintenance” or “Contractual Alimony”. This is voluntary and paid according to an agreement between the spouses as to how much it will be and how long it will last. In this form of post-divorce spousal maintenance, a spouse does not have to prove any legal eligibility requirements.
This sometimes used as a way to divide up marital assets or for Tax purposes.
There is no guarantee for contractual maintenance but is something that both parties would have to agree upon.
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