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If you are a person who is obligated to pay your ex-spouse a certain amount of spousal maintenance for a certain amount of years, today’s blog post may be of interest to you. The reason being is that we are going to discuss the circumstances and details surrounding how and why you may be able to modify or terminate outright your responsibility to pay your ex-spouse maintenance.
Let’s start with the most straightforward part of our discuss. You have no obligation to pay spousal maintenance if your ex-spouse passes away. Second, your estate has no obligation to pay spousal maintenance if you pass away during the time that you are obligated to pay. Last, if your ex-spouse re-marries then your obligation to pay spousal maintenance likewise ceases. Now that we have the certainties established, let’s discuss some topics that can be a little more difficult to wrap our heads around.
What if your ex-spouse begins to live with another person?
So here you are- paying spousal maintenance to a person that wanted to divorce you. You may or may not have wanted the divorce. No matter what side of that issue you fall into, it is very unlikely that you wanted to pay spousal maintenance to that person. However, you have dutifully paid the maintenance as ordered because you do your best in life to follow the rules no matter how unpalatable those rules may be.
One day you find out from a mutual friend that your ex-wife has moved in with a boyfriend. This comes as news to you since you hadn’t had the opportunity or desire to keep up with the goings on of your ex-spouse. Your mind immediately goes to the spousal maintenance issue. It’s not fair that you should still have to pay money to your ex-spouse if she is getting helped financially by another person.
A family court in Texas can terminate your obligation to pay spousal maintenance under these circumstances. If your spouse is found by a court to have been cohabitating with their significant other on a permanent basis then that is basically all that is needed to terminate your obligation to pay spousal maintenance.
How can the obligation to pay spousal maintenance be modified?
The specific amount of spousal maintenance that you are obligated to pay in your final decree of divorce can be modified or reduced. You must first file a motion to modify in court and present evidence to justify your request. A substantial change in circumstances would need to be shown by you, the moving party. You should also be aware that your ex-spouse cannot file a counter motion to increase the amount of support to be paid. Likewise, an independent motion to modify cannot be filed by her asking for an increase in spousal maintenance. The reason being is that spousal maintenance can only be modified downward and cannot be modified upward.
You would need to file your modification lawsuit and have it served upon your ex-spouse just like any other type of civil lawsuit in Texas. Notice is needed prior to a hearing on the matter. Your spouse would need to file an answer with a specific period of time. Once service has been achieved, you can proceed to a hearing where both you and your ex-spouse can present evidence as to why the spousal maintenance should either be decreased or be maintained at its current level.
The standard of evidence utilized in a Texas modification case is that you must show that a substantial change in circumstances has occurred since the last time you were in court. That change could have occurred in your life or in that of your ex-spouse. A comparison will be made by the court between your financial circumstances then and now, as well as the financial circumstances of your ex-spouse then and now.
Can your ex-spouse try to get an order granting her spousal maintenance after the divorce has occurred?
This is a concern that I have run into from time to time. Basically, the question involves whether or not it is possible for an ex-spouse to go back to the divorce court in an attempt to get spousal maintenance ordered after the divorce has already occurred. Essentially, can your ex-spouse get a second bite at the apple when it comes to getting spousal maintenance ordered?
I can understand why a person would try to do so. Imagine getting a divorce and only having worked a few times off and on over the past years during the marriage. If your ex-spouse finds a job quickly but is then laid off, she may be in a desperate position. Or, even worse, your ex-spouse may suffer a physical or mental disability that prevents her from working.
Even bearing in mind these sort of scenarios, your ex-spouse cannot go back and attempt to get spousal maintenance ordered against you. Once your divorce is finalized, your ex-spouse is foreclosed from ever again asking for spousal maintenance.
How can you enforce a spousal maintenance order in Texas?
Let’s look at the issue of enforcing a spousal maintenance order from the perspective of the ex-spouse who is supposed to be receiving the money. Whether you and your ex-spouse agreed in mediation to pay spousal maintenance or it was ordered by the judge, a court order can be enforced that obligates your ex-spouse to pay you spousal maintenance. However, it is only when a court orders the payment of maintenance that contempt can be used as a method of enforcement. Contempt of court is when a party to a case before that court violates a court order-either in front of thee judge or outside the presence of the court. There are a wide range of punishments that can be assessed in this scenario, including jail time (though it is not likely).
Some courts in Texas have ruled that even when you and your ex-spouse did agree to the payment of spousal maintenance, that contempt is a possible enforcement mechanism when a violation of the court orders occurs. To avoid any problems with how the language in the order is read, you should make sure that it is clear specific as to the responsibilities each party shares under that order in relation to spousal maintenance.
What defenses are available to your spouse as to why spousal maintenance was not paid?
There are circumstances that may exist in your spouse’s life that will actually work out to act as defenses on their behalf as to why he or she is not current in their paying you spousal maintenance. The most straightforward of those defenses is that your ex-spouse just lacked the ability to pay spousal maintenance as frequently and as much as is ordered in the final decree of divorce. Losing a job, getting sick or disabled or any range of circumstances could relate to this defense.
If you do not have income from a job, then a court would look to see if you have sufficient property that you own that could be converted into cash. It is probable that thee judge in your case looked at this factor back when the order was first instituted. However, people’s lives change over the years and a second look may bee justified.
Finally, the court will look to see whether or not you attempted to obtain a loan to pay the spousal maintenance. If you were unsuccessful it could because you did not know of any place where you could have borrowed the money from, or you were not able to borrow the money for whatever reason.
You need to present evidence in order to back up the assertion that your ex-spouse was justified in their not paying the spousal maintenance. It is insufficient to throw out one of the above defenses and leave it to your ex-spouse to present evidence about why those defenses are invalid.
How does income withholding relate to spousal maintenance payments?
Income withholding is typically a topic that we discuss more in relation to child support, but as of the past twenty years or so it has become possible to file a wage withholding order against an ex-spouse who is obligated to pay spousal maintenance. The wage withholding order would state the where, how and how much as far as spousal maintenance being withheld from a paycheck.
What happens when your ex-spouse is obligated to pay you both spousal maintenance as well as child support? In that case, an order of preference is given as to how withheld amounts of income are paid. Current child support would be the first priority with current spousal maintenance, child support arrearages and spousal maintenance arrearages falling in line after that.
Can you get spousal maintenance during a divorce?
Before the finalization of a divorce, can you obtain spousal maintenance? The answer to that question is yes. Either party (you or your spouse) or the court itself may file a motion and request for spousal maintenance to be paid. This would need to be the subject of a hearing where evidence could be presented by each spouse. These payments are known in Texas as temporary spousal support.
During the divorce it may become apparent that one spouse, who is usually not employed, is more or less financially dependent on the other spouse. In these situations the court and that party may seek to have temporary spousal support be ordered in order so that he or she does not suffer from lack of necessities during the divorce case. For instance, if you have had little to no access to your bank accounts during the course of your marriage it may be necessary that your spouse pay you temporary spousal support until the end of your case.
You can file a request for temporary spousal support within your petition for divorce or answer. Your attorney can work with you to come up with a statement to the judge showing your available financial resources as well as your monthly expenditures, on average. You can also provide information on your efforts to obtain training/education that can help you find permanent work.
Whatever your specific needs are is how it will be determined how much temporary spousal support is paid. The long and the short of it is that your family may require more or less money than mine and vice versa. Whatever your specific circumstances are will determine in large part how much money (if any) you end up receiving. Both your need for support and your spouse’s ability to pay temporary spousal support will be examined. After all- the court cannot force your spouse to pay money in support that he or she does not have.
The purpose of temporary spousal support is to ensure that the basic necessities of life are available to you during the divorce. The purpose of temporary spousal support is not to “even up” the income levels of you and your spouse.
Closing thoughts on spousal maintenance in Texas divorce cases
This is an important subject to many families. If you are in need of spousal support- either during your divorce or afterwards, it is important that you are able to present evidence as to why it is necessary and be prepared to respond to counter-evidence provided by your spouse. The best way to do this is to hire an attorney who has experience in the family courts of southeast Texas presenting cases just like yours.
Thank you for joining us today on our blog. If you have any questions about the material that we presented, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and address your concerns directly. We take a great deal of pride in being able to represent clients in the family courts of southeast Texas. It would be an honor for us to speak to you about being able to do the same for you and your family.
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