In Texas, a family court cannot order alimony to be paid by one ex-spouse to another. We hear about alimony as a topic on television shows and in the movies. Rich people are always having to pay alimony when they get divorced it seems. Do regular folks ever have to pay alimony? These are some legitimate questions to be asking. Your spouse may be asking you for alimony as a part of your divorce proceedings. Should this request be troublesome to you, or do you have nothing to worry about?
Well, for starters, a lawyer's favorite response to almost any question that he or she is ever asked would be it depends. This question is no exception to that general rule. We see that people who go through divorce cases have questions about the topic of alimony generally and post-divorce spousal support more specifically. Just when you think a divorce will end your relationship with that person, they come back and ask you for money. That’s a bit on the frustrating side, I’d imagine. You want the divorce to be a clean break for you but then the person goes ahead and asks you for a parting gift. Is this going to be a relevant question for you and your family?
Again, it depends. Let’s start by defining our terms a bit more clearly. Alimony is not a “thing” in Texas, but “contractual alimony” is a concept that you need to be aware of. Contractual alimony is when you and your spouse agree in mediation to have you pay her a certain sum of money for a certain period. This is a form of post-divorce spousal support. It is more akin to creating a contract with your spouse rather than anything in the Texas Family Code. Unless the method of payment is specified in the final decree of divorce, the section on contractual alimony cannot be enforced in the future by a family court judge.
Spousal maintenance? Is that the same as spousal support
Let’s get our terminology straight before we go any further. The trouble with this topic, as we have already covered to an extent, is that the correct verbiage gets all twisted up when it comes to spousal maintenance, contractual alimony, and spousal support. A lot of places on the internet and even some inexperienced family lawyers will casually refer to one of these forms of spousal support or the other(s) interchangeably as if they were all about the same. However, I am here to tell you that they are not. Rather, there are significant differences between the two and these differences are important for you to be aware of as you head into a divorce.
Spousal support is a term that many people use interchangeably with the other forms of support in Texas. When we talk about spousal support what we are talking about is interim spousal support. These are monetary payments that go from one spouse to the other during the divorce. Often, they are referred to as interim spousal support because they are made on an interim basis while your divorce is being sorted out.
On the other hand, both spousal maintenance and contractual alimony are intended to act as support for your spouse on a more ongoing basis after the divorce is over. Your ex-spouse would have needed to show a judge that without spousal maintenance that she would have great difficulty and ultimately be unable to provide for her minimal, basic needs. Spousal maintenance is intended to help bridge the gap between your spouse and the next phase of their lives.
Texas was the last state in the country to create a statute that allowed its judges to award spousal maintenance to potential winning parties. However, you and your spouse must have been married for at least 10 years before the divorce's beginning for there to be a consideration in the judge's mind to award you spousal maintenance. You may have a great reason as to why you need the money but if your marriage had not lasted the requisite length of time then you would be out of luck.
What does spousal maintenance attempt to do for the spouse who receives the money?
Spousal maintenance is intended to help provide your spouse with a sturdy yet short order that can last into the future. Much of the time, a person who has legitimately requested spousal maintenance payments in the divorce puts everyone in a position where they are on edge about how much can be awarded to the soon-to-be ex-spouse.
There may be financial, educational, health, or other differences that have caused a significant difference in your ability to provide for yourself after a divorce and your spouse’s ability. You may have a better job than she does. You may be healthier or younger than she is. She may have stayed at home and out of the workforce for many years to allow you to work and build up her career or even to go back to school and earn an advanced degree. Whatever the reasons are, the circumstances of your life will be examined to determine whether spousal maintenance will need to be ordered.
Spousal maintenance, as we will see in a moment is not intended to be a way for your spouse to live a certain lifestyle or even to receive money from you for an extended period. Rather, spousal maintenance is intended to help your spouse get their feet underneath them while adjusting to life as a single person. A judge will award spousal maintenance for the shortest length of time possible that will otherwise accomplish the goal of allowing your spouse the basics of life to subsist after a divorce. While you may be thinking that any award of maintenance will be too much money the truth is that spousal maintenance should not be viewed as a forever meal ticket for your spouse or as a gravy train on which to hitch a ride.
At the same time, your spouse must show a willingness to try and work to avoid having spousal maintenance order. If your spouse does not attempt to find work during the divorce, then their chances of having spousal maintenance ordered by the court are zero. Simply telling a judge that you know that you won't be able to find work because you've tried and been unsuccessful before is not going to be a sufficient excuse. You need to provide the court with proof of your attempts to find work, the results of those searches, and then whether you were able to find meaningful work despite these challenges.
Again, your spouse should not get comfortable with the lifestyle they have become accustomed to as far as your household is concerned. It is not reasonable to expect that your spouse should be able to keep living in the manner to which she has become accustomed just because it was once the way that she lived. So, if the best she can do is find an entry-level job now you all get divorced that may be able to keep you from having to pay spousal maintenance. Of course, the ability of that job to meet their minimum, basic needs is another consideration that needs to be made. Reasonable rent and food costs (among others) should be considered by the judge when awarding spousal maintenance.
Conditions for contractual alimony to be terminated
Two conditions are typically included in a final decree of divorce regarding termination of contractual alimony. The obligation to pay contractual alimony would typically end when either you or your ex-spouse die. Another termination clause involves remarriage. If your ex-spouse remarries then this would be a standard "out" for you to no longer have to pay contractual alimony. Bear in mind that these are examples of termination clauses or provisions that some people choose to include in their divorce decree. You will need to negotiate these specific provisions with your spouse in mediation, however.
Keep in mind, however, that if you owe back contractual alimony payments to your spouse then you must continue to make however many payments are necessary to become current for you to no longer need to pay the contractual alimony. You cannot automatically stop paying these alimony payments even if your ex-spouse has remarried. If you had gone back to the family court that issued your order and has received further orders on how to repay your spouse any owed alimony, then you need to follow those orders before stopping payments altogether.
Cohabitation and Spousal Maintenance
When two people in a romantic relationship live together continuously, they are cohabitating. Spousal maintenance payments end if the receiving spouse begins to cohabitate with a person that they are in a romantic relationship with. In this situation, you as the paying spouse would not be able to simply stop making payments and move along with your life. Rather, you need to file a petition to terminate your obligation to pay spousal maintenance.
You would need to assert to the family court judge that your ex-spouse has begun to cohabitate with another person and that your obligation to pay spousal maintenance should come to an end as a result. This is where things get tricky. On the one hand, you may know that your ex-spouse is dating someone and is now living with them. You may see photos on social media. You may have even driven by your old house and seen a moving truck in the driveway loading the boyfriend’s belongings into the new house. Tell-tale signs of a cohabitation situation.
However, you need to be able to figure out a way to turn that “evidence” into actual evidence that is sufficient to prove your case. If somehow that significant other has moved in and had their name added to the deed on the home, then this would be evidence that a court would certainly consider looking at your case. Short of something this obvious (and unlikely) you can present photographs if you find any that show cohabitation is occurring. We are not recommending that you stake out the house and snap photos on your phone while ducking low in the front seat of your car. This puts you and them in a dangerous situation, potentially. Do not engage in this way. Seek out photographs from places like social media before you ever try and take photographs of someone at their house. Talk with an experienced family law attorney with the Law Office of Bryan Fagan before making any decisions to do anything like that.
Substantial changes in circumstances
If you can show a court that a material and substantial change in circumstances has occurred for either you or your ex-spouse, then you may have grounds to at least modify the spousal maintenance awarded. Either you or your ex-spouse can file a motion to this effect, though assuredly it is you as the paying spouse who would be much more likely to ask for a modification to be considered.
For example, if you were ordered to pay spousal maintenance in your divorce three years ago you may have seen your income drop substantially in that time for several reasons. Whatever the actual reason may be, if you were earning $170,000 annually back in 2019 but are only earning $70,000 right now then you probably can’t afford to pay spousal maintenance to the extent that you were able to do so then. What used to be 20% of your gross monthly income would now be nearly half of your income for any month. That is a substantial change in financial position. If you have other financial obligations in your life now, such as a new child with another person, then this is an additional ground for the court to consider modifying or even terminating your obligation to pay spousal maintenance entirely.
Disability as a reason to request spousal maintenance
If you have a mental or physical disability that has prevented you from working or even has prevented you from living independently, a court can order that you receive spousal maintenance as a result. By the same token, if you have been unable to find appropriate employment because of caring for a child of the marriage who requires substantial care and personal supervision from your ex-spouse. This is an exception to the rule that we stated earlier about how your marriage needs to have lasted for at least 10 years for spousal maintenance to be considered by a court.
Family violence as a reason to request spousal maintenance
Another exception to the “10-year rule” for marriage length to request spousal maintenance relates to family violence. If your spouse has been convicted or received deferred adjudication for a criminal offense that also constitutes family violence, then you may request spousal maintenance in a divorce. Here are the two requirements that must also be in place as far as the timing of the violence is concerned. First, the offense must have occurred within two years before the date on which the divorce was filed. Second, the family violence conviction could have occurred while your divorce was ongoing, as well. In either case, you would be able to request spousal maintenance.
What can you do to prepare for a divorce?
The questions that we have been asking and answering in today's blog post have been specific. We are talking about one subject and as a result, we did our best to pinpoint several topics within the world of post-divorce spousal support. Make no mistake- while you may be interested in reading about spousal maintenance today several topics will be vital to your divorce outside of spousal maintenance.
The question that you need to ask yourself is how are you going to prepare for your divorce case. Reading blog posts is a fine way to start your journey but none of what you read in this blog post or any other on our website is legal advice. We want you to have information, but that information is generally applicable to (hopefully) a wide audience. What you need is specific advice about your circumstances so that you can make wise decisions for yourself and your children.
That is where experienced attorneys can come in handy. If you go into a divorce without representation, then you are setting yourself up for tough times likely. Sure- your best friend's neighbor's dog-sitter may have gotten divorced without an attorney but would you want to risk everything in your life on not hiring a lawyer? Consider your circumstances before making that decision.
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 consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn about the world of Texas family law as well as how your family's circumstances may be impacted by the filing of a divorce or child custody case.