Here's a question posed to me recently in consultation with a potential client of the Law Office of Bryan Fagan, PLLC: can spousal maintenance be awarded to a person after their divorce has already been completed? This person that met with me had suffered a stroke two months after her divorce had completed and now was unable to work or provide for her basic needs. She came in to see whether or not she could file a modification of her divorce decree to take her new disability into account. After all the divorce had not been over, she wondered for a couple of months, was this possible?
Unfortunately for this person, the loss of a job or the development of a disability like she had to go through are not reasons enough for a spousal maintenance order to be inserted into the other obligations contained in the final decree of divorce. There is no way that anyone (for any reason) may re-open the divorce to get a spousal maintenance provision included in the divorce decree. This is intended to protect spouses and not attempt to re-litigate a divorce after its conclusion- even if the decision was only a few months ago.
How to enforce the terms of a spousal maintenance order
An enforcement case is a quasi-criminal case that bears the potential for jail time due to failure to abide by the terms of a family law order. In the case of a spousal maintenance award, a court may enforce the order for spousal maintenance whether it was rendered by a judge or agreed to by the parties in mediation.
A question remains whether alimony payments and an order mandating alimony from one spouse to another are enforceable by contempt (jail time). Alimony is a contractual debt paid from one spouse to another instead of spousal maintenance, which is more akin to child support as a form of income. A person who owes another person a debt cannot be jailed for failing to make timely payments, and as such most courts, I imagine, would not allow you to utilize contempt of court as a mechanism to spur settlement.
Please note that prior Texas cases where your ability to enforce a maintenance order by contempt is not absolute. In Texas, the courts' overarching (general) practice is to allow for contempt as a punishment for the failure to abide by a court's order regarding spousal maintenance. To ensure that you are in a position to do so, I would recommend that your order be drafted very meticulously. This means the language utilized to cover spousal maintenance should be specific with precise terminology that can tell the judge in plain language what the expectations are for the party obligated to pay the maintenance.
Potential defenses in an enforcement case involving the failure to pay spousal maintenance
If you are in a position where you need to defend yourself against a spousal maintenance-related enforcement case, you do some defenses that you can present to a court. For instance, if you could not pay the spousal maintenance as ordered, you should offer the court this defense. Did you lose a job and been unable to find replacement work? Did you become disabled (even temporarily) and therefore find yourself unable to work? If so, then you should be sure to specify this for the court.
Short of having cash on hand, a court would look to the resources that you have available to you to pay your spousal maintenance obligation. If you lack property that could be sold to develop the funds to pay the spousal maintenance as ordered, you can present this type of defense in an enforcement case.
The final two defenses commonly utilized in a spousal maintenance enforcement case are either being unable to locate a person from whom you can borrow money to pay spousal maintenance, or you were unable to borrow money from a source that you had previously identified. Suppose a court is willing to say that you should borrow money to pay the maintenance. In that case, you can see that you must exhaust every resource available- including taking out loans and selling property- to meet the obligation.
Can your wages be withheld from your spousal maintenance obligation?
Much like when it comes to child support, a wage withholding order can be filed with the court and sent to your employer to take out a specific amount from your paycheck regularly to pay spousal maintenance. This is especially the case if you have fallen behind in your payments before, and it is shown to a court that filing a wage withholding order is necessary for you to meet your obligation.
Temporary Spousal Support while your divorce is ongoing
You can ask a court to have spousal support be paid to you temporarily during the pendency of your divorce. A court can also order this on its own even if you have not done so yourself. This is a lifeline of sorts that will protect you and your ability to live a basic lifestyle while your divorce is in progress. Remember that this is no guarantee of future payments after the divorce. We see this frequently occur in divorces where one spouse controls the finances and earns the community income. In contrast, the other does not make any income and has no control over the family finances.
If you believe that you will require temporary spousal support, you should request it in your petition for divorce or in the answer filed in response to the petition for divorce. The key here is that a detailed and accurate financial statement will need to be presented to the judge before any hearing on this subject in order so that you can capture the present state of your finances.
A court will determine your specific need for temporary support and will make an award as such. Both your needs and the ability of your spouse to pay the license will be considered. Spousal support is not intended to help you live the same type of lifestyle as your spouse during the divorce but instead to help you exist until a later date when you become able to work and earn a sufficient income to provide for yourself. Even if you just won a temporary spousal support award, finding a job is a great idea.
Questions on Spousal Maintenance or any subject in family law? Contact the Law Office of Bryan Fagan, PLLC
The attorneys with the Law Office of Bryan Fagan, PLLC, appreciate you spending these past few days with us reading about the critical subject of family law. We hope that the information we presented will assist you in your particular legal situation.
If you have questions about anything you've read, don't hesitate to contact us today. We offer free of charge consultations six days a week with one of our licensed family law attorneys.
