One of the aspects of a divorce that can be positive, on some level, is the degree of closure that you can experience at the end of a case. Not only have you ended a relationship that may have been difficult for you, but you are also putting a lid on a legal case that has liked lasted some months in duration. That alone can be comforting and will allow you to place your focus on your post-divorce life, your children, your business, and any other part of your life that needs attention at the moment. This may be a slim silver lining to going through a divorce, but it is a silver lining, nonetheless.
Some divorces have less finality or closure than others, however. For instance, If you share children with your spouse, you will quickly come to learn that you will always have a connection to your ex-spouse through the parenting of those kids. As much as you may want to think that co-parenting involves little coordination or a joint effort with your ex-spouse, the reality is that your children will benefit if the two of you can put aside your differences and manage to raise your children as a team.
Teamwork requires communication. Communication may have been part of the reason why you and your spouse find yourself contemplating divorce right now. The fact is that if you two are parents and have not yet learned how to communicate with one another, then the divorce process offers you an opportunity to continue down that road of non-communication or to chart a different course and instead learn how to communicate despite your differences effectively. The choice is ultimately yours in this regard.
Another way your divorce may end up not having near as much closure or finality as you may like is regarding spousal maintenance. In Texas, two types of post-divorce spousal support may be ordered in your case: spousal maintenance or contractual alimony. Contractual alimony is an agreed-upon form of spousal support that is typically arranged, the details at least, in mediation. If you and your spouse were to be on the same page, that some degree of support was needed for your spouse to meet their monthly obligations after the divorce, you could agree to some amount of money to be paid to him, or her starting after the divorce ends.
On the other hand, spousal maintenance is a form of spousal support that is not voluntarily agreed to. A judge would order maintenance in a trial after your spouse produces sufficient evidence of their need for money payments from you after the divorce. The other key point to this discussion is that you need to make those payments work. If neither of you will be in good financial shape after divorce, the judge is doubtful to order maintenance to be paid. This is why producing a budget and making that available to the court as an exhibit to be entered into evidence.
Once spousal maintenance is ordered, you will have a set amount to pay to your ex-spouse every month, as well as a period for those payments to be made. You and your spouse must have been married for at least ten years for spousal maintenance to be ordered. Depending on the length of time you have married, the length of the spousal maintenance can be extended for up to ten years if you all were married for thirty or more years. Marriages lasting ten to twenty years can earn up to five years of spousal maintenance, while marriages of twenty to thirty years can earn up to seven years of spousal maintenance.
As they say, nothing lasts forever. That is certainly true of spousal maintenance awards in all likelihood. I could foresee an instance where your spouse has a disability, and you are forced to pay spousal maintenance for a longer period if they cannot work. Otherwise, spousal maintenance awards do not last beyond ten years. Even in those cases where maintenance is to be paid for nearly a decade, there are limits regarding what percentage of your income can be paid towards maintenance. Typically, no more than 20% of your gross monthly income can be attributed to spousal maintenance payments.
In what kind of circumstances are modifications of special maintenance justified?
Even though we have been talking about spousal maintenance as the sole topic of today’s blog post, it bears mentioning that the circumstances that justify the modification of spousal maintenance are the same as those that justify the modification of any family court order. For example, if you are the party attempting to modify the amount of special maintenance that you have to pay your ex-spouse per month, then the burden is on you to provide sufficient evidence to justify your request.
Look at it from the perspective of a family court. If you could only present a sliver of evidence as to why the special maintenance should be modified, then people would be filing modification lawsuits left and right. Courts do not want the constant relitigating of issues that, in many cases, have recently been dealt with. For that reason, the evidentiary bar to modify a family court order is fairly high. Rather than a mere scintilla of evidence justifying the modification, a person in your position must provide much more evidence.
Specifically, you must be able to show that a material and substantial change in circumstances has a curd either in your life or in that of your ex-spouse to justify your request to modify the award of spousal maintenance. This is the exact terminology included in the Texas family code and is what a family court judge would look to determine your justification for requesting the modification of the award downward. This is a higher standard than providing a good cause or the sliver of evidence I mentioned earlier in this blog post.
The real question for you is, what some examples of what material and substantial change in circumstances look like are? After all, knowing the legal standard for modification in a family court is good. Still, you need to understand what to look for in your own life when determining whether or not your circumstances merit or reduction based on a modification of the special maintenance orders. Here are some examples of real-life circumstances that may justify your filing a modification for a change in the special maintenance orders.
If you see a significant decrease in the income you earn every month; then this is a fairly straightforward reason you could ask for a modification of your special maintenance award. Especially during a pandemic, it is completely conceivable that your income could have suffered a decrease due to the pandemic and our government’s response to it. Whether you work in oil and gas, hospitality, or the entertainment field, many sectors of our economy have seen significant amounts of harm done to them over this past year.
A decrease in your income that only means that you have likely had problems paying the spousal support required of you in your final decree of divorce, but you very well may have had problems in paying your household bills like your rent or mortgage. It doesn’t take a family law expert to know that when given the choice of which bill to pay, you are likely to be more concerned with your household expenses or your child support than any special maintenance.
If you can show a judge that your income had significantly decreased since the beginning of this pandemic almost one year ago, then you Should begin to take steps towards doing so. The last thing you want to do is to hold out false hope that your circumstances will improve when your reality is that there is no sign of a change in circumstances coming when it comes to your income. Rather, you should begin to learn as much as you can about modifying your spousal maintenance responsibilities, collect documentation to prove that your income has seen a significant decrease and then work to determine what’s your likelihood of success in this type of case is.
Next, you should consider what your expenses have looked like since you were ordered to pay spousal maintenance. When it comes to a normal budget, there are two components: your income and your outgo. Even if your income has remained steady throughout this pandemic, you may have seen expenses increase in many different areas of your life. For example, you may have increased costs associated with operating your business, providing health insurance for yourself and your children, or ongoing medical costs. Developing a chronic health condition in the middle of a pandemic certainly is no fun, and we can point to all sorts of unforeseeable circumstances that could otherwise increase the number of expenses in your life.
Whether your income is going down or your expenses are going up, the result could very well be the same. A judge can only order you to pay special maintenance in a divorce if it is shown convincingly that you have the means to do so. There needs to be enough margin between your income and your monthly expenses for a judge to require you to pay spousal maintenance after your divorce. We have just gone through our list of how your circumstances may have changed in this regard for the worse since your divorce. It would help if you considered what these changes have been and whether or not they will be able to justify the filing of a modification case.
Has your ex-spouse seen any change in their income?
The other side of the Ledger is that your ex-spouse must have been determined to be unable to meet their own minimal, basic needs due to being able to earn their income after the divorce. This is why special maintenance is ordered. Your superior ability, relatively speaking, 2 provide a basic living for yourself was seen as sufficient justification to order spousal maintenance to be paid. Even if your income remained steady along with your expenses, it could be determined that a dramatic increase in your ex-spouse’s income may also justify a reduction in your special maintenance order.
Often, especially if your ex-spouse has not worked in some time, they may be using the time. During and immediately after your divorce to finish the degree or complete some vocational training. If your ex-spouse completed their training, then it is likely that their job prospects improved and their income increased. If that increase in income was fairly dramatic, then this certainly is sufficient reason for you to file a modification case.
To present evidence of an increase in your spouse’s income, you and your attorney should conduct discovery and ask for responses to questions, financial documents, and tax statements to provide you with a clear idea about what your ex-spouse’s income is. Sometimes we get the impression that a person is doing much better from an income and wealth perspective. By following through with the discovery process, you will be better able to wrap your arms around what your ex-spouse’s income truly is and to what extent he may be justified in seeking a reduction of your special maintenance obligation.
The facts matter in Texas modification cases
while it is true that facts matter in any legal proceeding, I think this is especially true in the world of family law. While the laws themselves impact how judges rule in these cases, I think it is also true that judges can analyze and make decisions in cases based on their own experiences and the specific facts in accounts in your case. While there are legal principles that your judge will have to follow, the judge is also given a fair amount of discretion to make decisions based on their past experiences regarding modification and spousal maintenance cases.
If you have developed a disability of some sort during the pandemic, then this almost certainly would be sufficient cause to have your special maintenance orders reduced or even illuminated outright. Again, not all impairments you may have suffered during the pandemic are created equal, and therefore, you will want to speak with an attorney before filing a case. Likewise, if you can present evidence showing that your ex-spouse has greatly increased their income, then that may be all the cause needed to have your special maintenance order reduced.
What if your ex-spouse begins a romantic relationship with another person after your divorce?
If your ex-spouse gets remarried, then your duty to pay special maintenance automatically comes to an end. It would not be necessary to file anything with the court and appear before the judge to get your obligation terminated legally. Your ex-spouse has a legal duty and obligation to provide you with updates on whether or not they are married.
A more difficult question to answer would be what your obligation for spousal maintenance payment would look like if your ex-spouse becomes involved in a romantic relationship but does not get married. Circumstances where you were exposed, were to move in with another person or have another person move in with them may cause you to have your special maintenance order terminated, as well. You must be able to prove that your ex-spouse is cohabitating with another person with whom they are involved in a romantic relationship.
This can be somewhat difficult to prove that cohabitation is more than just spending the night at another person’s house every once in a while. To collect the necessary information and evidence required to justify a modification or termination of spousal maintenance based on these types of circumstances, I do recommend that you speak with an experienced family law attorney who has handled modification cases regarding special maintenance.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These free-charge consultations can go a long way towards helping you understand your circumstances better, as well as how they interact with Texas family law. I appreciate your interest in our long practice. We hope that you will join us again tomorrow as we continue to share additional information about the world of Texas family law. Our attorneys take a great deal of pride in serving our community and look forward to the opportunity to serve your family, as well.