If you believe that you need to get a divorce from your spouse but are hesitant to move forward due to concerns that you have regarding your ability to survive financially after your case concludes then today's blog post is intended just for you. Regardless of your financial status, there is plenty to be concerned about in a divorce. Finances, however, usually are placed at the top of many persons' lists of concerns along with the well being of their children. Counting yourself among these groups of persons means that you’ve come to the right place in order to learn as much as you can before actually beginning your divorce.
While the concepts surrounding spousal maintenance and contractual alimony are similar- your ex-spouse pays you money after your divorce- how you arrive at each is quite different. Today’s blog post from the Law Office of Bryan Fagan will discuss those topics with you and will then go into specific information about each type of post-divorce spousal support payments.
Spousal maintenance is ordered by a judge in a divorce trial
Most divorces in Texas are not solved in a courtroom but rather in the office of a mediator. Mediation is a process whereby you and your spouse attend a formal settlement negotiation session with a licensed mediator acting as a go-between and facilitator of information. The vast majority of family law courts in Texas require that you attend at least two mediation sessions prior to ever entering a courtroom for a trial. Mediation causes you and your spouse to take ownership over your case and also frees up the judge to hear other matters that are likely more pressing than your own.
While it is therefore unlikely that you will ever go to a trial, you should know that spousal maintenance is the specific type of post-divorce spousal support that is actually ordered by a judge in a trial. It is therefore involuntary and must be paid regardless if your spouse agrees that you need this type of support. Therefore, the other type of post-divorce spousal support, contractual alimony, is agreed to mutually with your spouse in mediation or in an informal settlement negotiation.
Let's first get into the subject of court-ordered spousal maintenance. I chose this topic to be discussed first not because I think it is incredibly likely that it will be ordered in your divorce case, but because you ought to know what it is so that you can negotiate from a position of strength while in mediation.
Getting a court to order your spouse to pay you spousal maintenance is not so easy
In the event that you do find yourself in a courtroom where the possibility exists that court-ordered spousal maintenance could be the result of the trial, it is important to realize that it is far from a slam dunk that this actually occurs. On the contrary, judges will bend over backward in many situations do not have spousal maintenance be an order handed down to you and your spouse. The reason being is that the law does not allow for the “easy” ordering of spousal maintenance and calls for it to be utilized by courts in fairly limited circumstances.
Community property laws are a kind of spousal maintenance
We can look to our laws on community property to, in part, detail why this is the case. As you may or may not be aware, Texas is a community property state. This means that all property acquired or created during the course of your marriage is presumed to belong to you and your spouse jointly. This means that if you purchased a boat with your spouse’s income, or your spouse got a raise due to their performance at work that money and that boat is just as much yours as it is his. It does not matter if you have been married for ten minutes or ten years. It also doesn’t matter if you have contributed nothing, income-wise, to the marriage.
In my opinion, the favorable community property laws that our state has chosen to implement for those going through divorces can take the place of the need for spousal maintenance to also be awarded. Whatever is determined to be community property will be divided in a just and right manner when the final orders are handed down. In many cases, a 50/50 split occurs whereby you and your spouse walk out of the divorce with a fairly even split of that community property.
Consider that wages, bonuses, salary and income in a general sense are all able to be divided up between you and your spouse in the community property division at your trial. Again, your spouse will not be credited completely for earning all the resources that your family has used to survive since the start of your marriage. You are not going to suffer because you chose to stay home and help raise children or take care of the home.
Keep in mind that if you anticipate having problems providing for your minimal needs after the conclusion of the divorce and otherwise have little in the way of a separate property estate you could be in line to receive a disproportionately large share of your community estate in order to compensate for the lack of resources available to you in other ways. From my experiences, a judge would prefer to go about their business in this manner rather than to award a spouse a hefty award of spousal maintenance.
Get to work (even if you didn’t need to when you were married)
The following should come as no surprise to anyone who has ever lived in Texas or has ever heard anything about Texas as a state: it is our state government’s belief that you are best served to work as much as you need to in order to provide for your own basic needs. This sort of individualism and work ethic are not quite as pronounced as they once were in our nation and in our state (I promise to offer no more editorials in this blog) but are still prevalent.
Court ordered spousal maintenance will not be something that a court allows you to fall back on permanently after your divorce. Rather, the theory behind court-ordered spousal maintenance is that it will act as a means by which you can get on your feet after a tough divorce and help sustain you while you look for work. There is some thought that if you receive spousal maintenance for too long your incentive to look for work will decrease and you will become unnecessarily reliant on these spousal maintenance payments in order to sustain you. This is an argument that is used against government-funded assistance mechanisms like welfare, food stamps, and other similar programs.
Still, in the event that you lack sufficient funds to fend for yourself after your divorce, are disabled or the parent of a child that requires your around the clock supervision due to a disability or are a victim of family violence then court-ordered spousal maintenance may be a possibility for you.
What you need to know about court-ordered spousal maintenance and when do you need to know it by?
If you can head into your meditation session with this information available to you then you will be negotiating from a position of strength. Knowing what a judge is likely to do, and what power he has to do anything at all will inform your negotiation style in a dramatic fashion. For instance, if you know that you are likely to be awarded court-ordered spousal maintenance due to your having been the victim of family violence then you would likely be better off pushing hard on that subject because you know that if your spouse does not negotiate with you that a judge is likely to come in and award it to you anyways.
Next, knowing what can be involved in a court-ordered spousal maintenance setting can help you to structure the terminology and payment instructions for contractual alimony payments in a mediation session. How would you and your attorney know how to structure the payments or the language that guarantees those payments without first seeing what a court would order if you made it to a trial? Use their rules to not only speed up the negotiation but in also drafting language that can be utilized and approved by a court.
How to determine if you are eligible to receive payments of court-ordered spousal maintenance
The laws regarding court-ordered spousal maintenance changed at the beginning of this current decade. Now, in order to be awarded court-ordered spousal maintenance, you must be able to prove to a judge that you are otherwise unable to provide for your minimum reasonable needs. A court will consider where you stand financially after your community estate has been divided as well as what is coming to you in the way of your separate property.
If you can show a judge that the above factors lead to you needing to receive court-ordered spousal maintenance then you still have a heavy burden to bear in order to actually be awarded any money. The reason is that you must be able to then show that your spouse either: 1) committed an act of family violence against you 2) you have a disability that incapacitates you and also developed during the course of your marriage 3) your child has a physical or mental disability that requires you to provide around the clock care and 4) that your marriage has lasted at least ten years and that you have made every attempt to locate suitable work and have thus far been unsuccessful at doing so.
Tips for making strong arguments for yourself as to why spousal maintenance is needed
Now that we know what needs to be in place in order for you to even be awarded spousal maintenance, let’s discuss some helpful hints that can assist you in receiving the spousal maintenance that you are seeking.
First off, you need to be seeking to better yourself financially during the divorce. This does not mean that you need to be out looking for a second or third job. This just means that if you anticipate the need for spousal maintenance after your divorce that you ought to be doing everything in your power to find work so that you can present this to the judge. Diligent attempts to locate work while your divorce is going on sounds like what you should be doing in order to best ensure that spousal maintenance is awarded in your divorce trial.
Finally, if you have heard that you are better off not working during the divorce because your spouse will be forced to pay you spousal maintenance I hope that you can see that this is not a strong argument. Not only are courts not in favor of not awarding spousal maintenance but the law is not set up for you to sustain yourself for too long on just spousal maintenance. If you meet the above qualifications and are showing some initiative in the areas of bettering yourself and your income then I believe that an award of spousal maintenance is extremely possible.
More tips and tricks to be awarded spousal maintenance will be shared in our blog tomorrow
Thank you for taking time out of your day to read our blog post. We will be back tomorrow to share with you some more tips and tricks regarding both court-ordered spousal maintenance and contractual alimony. If you have any questions regarding the information that we have shared with you all today then I encourage you to contact the Law Office of Bryan Fagan today. We offer free of charge consultations six days a week in our office. These meetings are a great opportunity to receive information that is tailor suited to your specific circumstances and case.
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