Unless you and your spouse have resolved all issues in a divorce, your divorce will more than likely be considered “contested”. If your divorce case is contested and goes to a court the Judge may order alimony if you or your spouse is seeking spousal support. The following information will help you determine what to expect regarding alimony.
Is Alimony in Texas Common Place?
In Texas alimony is called spousal maintenance. Most cases do not involve awards of post-divorce spousal maintenance even if a party may be eligible. Spousal maintenance is at a judge’s discretion and often a judge will determine that it is not appropriate.
Eligibility for Maintenance
In Texas, a spouse may be eligible for spousal maintenance under Texas Family Code 8.051 if a spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and:
1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section 71.004, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred:
(A) within two years before the date on which a suit for dissolution of the marriage is filed; or
(B) while the suit is pending; or
(2) the spouse seeking maintenance:
(A) is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
(B) has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
(C) 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 sufficient income to provide for the spouse’s minimum reasonable needs.
Factors in Determining Maintenance
If a spousal meets one of the above eligibility requirements, a divorce Judge will examine a number of factors to determine whether an award of spousal maintenance would be:
- Appropriate under the circumstances
- The duration
- The amount
- And manner of payments
Texas Family Code section 8.052 sets out the factors that a divorce court will consider including:
- each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;
- the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
- the duration of the marriage;
- the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance
- the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
- acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
- the contribution by one spouse to the education, training, or increased earning power of the other spouse;
- the property brought to the marriage by either spouse;
- the contribution of a spouse as homemaker;
- marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
- any history or pattern of family violence, as defined by Section 71.004
Spousal Maintenance Presumption
There is a rebuttable presumption that maintenance under Section 8.051(2)(B) is not warranted unless the spouse seeking maintenance has exercised diligence in:
- earning sufficient income to provide for the spouse’s minimum reasonable needs; or
- developing the necessary skills to provide for the spouse’s minimum reasonable needs during a period of separation and during the time the suit for dissolution of the marriage is pending.
Duration of Spousal Support
Should an ex-spouse be awarded spousal maintenance there is generally a cap on how long a judge can award spousal maintenance.
Basis of Award
Length of Marriage
Married 10+ years
Between 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
As long as spouse satisfies eligibility requirements
A Texas Divorce Court under Texas Family Code Section 8.054(2):
Shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse’s minimum reasonable needs, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs is substantially or totally diminished because of:
- physical or mental disability of the spouse seeking maintenance;
- duties as the custodian of an infant or young child of the marriage; or
- another compelling impediment to earning sufficient income to provide for the spouse’s minimum reasonable
Amount of Spousal Maintenance
Under Texas Family Code Section 8.055:
A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:
- $5,000; or
- 20 percent of the spouse’s average monthly gross income.
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 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
- homemaker contributions;
- marital misconduct of either spouse; and
- family violence.
Spousal Support While the Divorce is Ongoing
A Judge may order spousal maintenance while a divorce is ongoing during Temporary Orders. The requirements for Temporary Orders spousal support are far less stringent, and much easier to get. This partly due to:
- the duty to spouses to support each other during the marriage and
- the presumption that all property is community property.
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