One of the most frequently cited reasons why a person may attempt to delay a divorce has to do with their finances. When you are not working and instead are reliant upon your spouse and their income to pay the bills then a divorce can be an intimidating issue to face. Rather than moving forward with a divorce that you know is necessary, you may simply be delaying the inevitable due to feeling financially bound to your spouse.
This is not a new development. For years, spouses (mostly wives) who did not work were left in a precarious position when it came to wanting to move forward with a divorce. On the one hand, you could file for divorce but suffer in the short term due to a lack of income. Your bills don't come to an end just because you file for divorce. Or, you could delay the divorce only to suffer through a bad marriage. Neither option was ideal by any means.
In 1995 The Texas Legislature changed the course of family law and how it is practiced by codifying a law regarding spousal maintenance. The law would allow for Texas family court judges to be able to order spousal maintenance in certain circumstances. We will go through what those requirements are and what it can mean for you to be ordered to receive or pay spousal maintenance. However, I would also like to share with you some thoughts on how likely you are to receive spousal maintenance in your case.
How can you be ordered to receive spousal maintenance?
Spousal maintenance is a needs-based consideration for the judge. Your income will be judged against your expenses each month. If it is determined that you cannot meet the minimal requirements to keep your head above financial water, then that is a good start to being able to receive spousal maintenance. Your minimal, basic needs are what the judge will look to. This means rent, food, clothing, gas for your vehicle, and not much else.
You will notice that this does not mean that you are going to be able to live exactly how you used to in the manner that you had become accustomed to living, in other words. Spousal maintenance is not about maintaining a certain lifestyle. Rather, it is about subsistence. If you can't afford the basics in life without financial assistance from your spouse, then you can have spousal maintenance ordered in your case.
The other side of the coin on this issue is that your spouse must be able to afford to pay you the spousal maintenance. If he or she has no income that can be used to pay your spousal maintenance, then it will not be ordered. This is why it is so crucial for you and your spouse to be able to submit detailed accountings to the judge of your household budget. Any mistake one way or the other could determine whether spousal maintenance is ordered in your case.
The next requirement that you need to bear in mind when it comes to having spousal maintenance issued in your case is the length of your marriage. You and your spouse would need to have been married for at least ten years for a judge to order spousal maintenance. Depending upon the length of your marriage, you may be entitled to even more spousal maintenance in terms of duration. Most spousal maintenance awards do not last any longer than seven years.
If you and your spouse have been married for fewer than 10 years then you are most likely not able to receive spousal maintenance in a divorce. However, there are some exceptions to this rule that we can go through right now. The first exception would be if your spouse has been charged with domestic or family violence crimes within two years before your divorce is filed. In that case, you may yet be able to receive spousal maintenance even if you and your spouse have not been married for 10 years.
Next, a court could look at a circumstance involving disability for you or your child and award your spousal maintenance. If you are unable to work because you are disabled, then you may be able to have spousal maintenance ordered to be paid to you in your divorce. Likewise, if you are the caregiver for a child who is disabled, and you are unable to work because of needing to care for that child then you could be awarded spousal maintenance in your divorce.
When it comes to being able to prove a disability or a disabling condition that prevents you from working, sometimes things are less obvious to your spouse or a family court judge than they are to you. In that case, you and your attorney need to be diligent about how you prepare to present evidence to a family court judge if you are trying to assert that you or your child is disabled. Testimony from a doctor or other medical witness may be necessary. For example, a medical professional like a nurse, social worker, or even certified nurse’s assistant may be helpful when it comes to being able to provide evidence to a judge that you or your child are disabled.
Having your documentation in order as far as being able to submit medical records or statements from government entities to certify a disability is also important. You may have had to turn these documents over to your spouse as a part of the discovery. Either way, this should not be something that you leave up in the air until the morning before mediation. Rather, you and your attorney should be working on this step of the process long before you reach a point where there is a hearing, trial, or mediation date upcoming.
These are the basic grounds for spousal maintenance in Texas. Spousal maintenance is something that can only be awarded by a family court judge. Even then, it can be difficult to be awarded special maintenance. You should have a plan in place as far as how to put your best foot forward when it comes to presenting a case as to why you should be paid special maintenance. Simply hoping for the best or not preparing as diligently as possible in this regard can be disastrous if you hope to be paid spousal maintenance because of your divorce.
Is there a presumption against spousal support in Texas?
Now that we have discussed why you may be able to receive an award of spousal maintenance in your Texas divorce, we should also discuss what may be working against you in terms of being awarded this important divorce benefit. Most Texas courts will begin with the assumption that you do not need to be paid spousal maintenance. It is only after you can show that it is a necessity for you that a family judge will order that your spouse pay you spousal maintenance for any length of time.
It is not as if a family court judge will look at your circumstances and say that it sure would be nice for you to receive an award of spousal maintenance on top of any child support you also receive or how your community estate was divided. How your community estate is divided can play a role in determining how much spousal maintenance you receive, if any. Depending upon the size of your community estate as well as the way that the community estate was divided, a judge may instead decide that because your estate was divided in a way to provide you with liquid assets that can be sold to support you after your divorce that you may not need any spousal maintenance at all.
Even if you are awarded spousal maintenance in the divorce, it likely will not be a situation where you are paid the maintenance on an ongoing basis into the future. Rather, even marriages that have lasted for more than 30 years rarely see spousal maintenance ordered for longer than 10 years at a time. If you suffer a disability, or your child does, it is possible that a family court judge would even order you to return to court at a certain date to determine whether or not that disability persists for you or your child. This way your spouse will not have to pay you spousal maintenance for an indefinite period based on a disability that may or may not exist in the future.
Is there a limit to how much spousal maintenance can be awarded
If you are awarded spousal maintenance the amount that you will be determined based on what you contributed to your marriage. For stay-at-home parents and spouses, you can breathe easier knowing that contributions at the home count in this calculation. When you think about helping the kids with their homework, preparing meals, cleaning the home, coordinating all upkeep and maintenance, and transportation for the kids your efforts at home do have a tangible value in terms of dollars.
It is also crucial for the judge to consider your spouse’s ability to pay the spousal maintenance. Both of you would have to submit a detailed financial account, basically a budget, to show the judge what your monthly expenditures and income are. If your spouse doesn’t have the extra cash in their budget to pay you spousal maintenance, then the judge will not order it. Something about it’s easier to get blood out of a turnip than it is to get money out of a person who doesn’t have it, as my grandpa used to say.
As we mentioned at the beginning of today's blog post, some considerations need to be made as far as the criminal history of your spouse. If your spouse would be in a position where he or she would have to pay spousal maintenance and has been a pattern of violent behavior in the home, then the judge may use this as an opportunity to compensate you for having gone through violence in the home previously.
There are limits to what you can be paid in spousal maintenance. The award of spousal maintenance cannot go beyond 20 percent of your spouse's income or $5,000 per month. This is true even if you have no income yourself, live in an expensive part of town, or anything in between. Remember- spousal maintenance is not intended to help allow you to live a certain lifestyle that you had become accustomed to during your marriage.
What are the different types of spousal support?
So far in today's blog post, we have used two terms to describe spousal support: spousal maintenance and spousal support. However, probably the term that we are all most familiar with is alimony when it comes to the idea of post-divorce spousal support. Many of us are familiar with the term alimony simply by being exposed to movies and television shows. In those situations, we oftentimes see alimony being discussed as a way for our families to be able to continue living an extravagant lifestyle even after a divorce. The young trophy wife of the old billionaire may be paid alimony to allow her to live like a Princess even after a divorce.
Alimony does exist in Texas. However, it is not known as alimony but rather as contractual alimony. Contractual alimony can be a part of your divorce if you and your spouse agree that you should be paid some amount of money to support Your household after the divorce. This could be due to your never having worked outside the house or because you suffer from a disability that prevents you from working period either way, whatever the contractual alimony basis is if the two of you agree that spousal support should be paid then you can move in that direction without ever having to go before a family court judge.
The other benefit of contractual alimony over spousal maintenance is that you and your spouse can set the terms for how much support should be paid and for how long. Whereas, when it comes to spousal maintenance there are limits on how much can be paid every month and for how long the support can be paid, contractual alimony leaves it up to the two of you to determine what is appropriate based on your circumstances.
However, if you are in the position of either paying contractual alimony or receiving contractual alimony there are also risks to this arrangement. For one, it is not possible to enforce an order for contractual alimony based on the Texas family code. Rather, your family court judge would utilize principles of contract law to enforce the order. In this way, the judge could only enforce an order to the point where he would be able to enforce his spousal maintenance order. If you are receiving contractual alimony that goes above and beyond what you would have been able to receive under spousal maintenance, then you may be limited in your rights to be able to enforce in order in this regard.
Additionally, there are ways for you to end your obligation to pay spousal maintenance. The most common method would be to file a motion to terminate the spousal maintenance if your former spouse begins to move in with a romantic partner. Cohabitating with someone that you are in a romantic relationship with is grounds to terminate spousal maintenance in Texas. However, this is not the case when it comes to contractual alimony. Rather, you would need to insert language into your final decree of divorce making this the case so that it would apply to you in your circumstances. The last thing you would want to do is being a position where you end up having to pay contractual alimony during a period where your former spouse is living with their boyfriend or girlfriend. In this way, your former spouse may be able to take advantage of three streams of income.
Final thoughts on spousal support
Spousal support does exist in Texas- both during the divorce and after the case has ended. However, the circumstances that you find yourself in, the size of your community estate and your spouse’s ability to pay spousal maintenance or contractual alimony will all factor into the discussion of whether and how much support you may be able to receive. When the stakes are high for you and your family, it is recommended that you enlist the assistance and experience of an attorney from the Law Office of Bryan Fagan to help you achieve your goals in a Texas divorce.
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 opportunity for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.