Supporting Disabled Spouses: A Guide to Spousal Maintenance in Texas

Spousal maintenance refers to post-divorce spousal support paid by one spouse to the other. As opposed to contractual alimony, spousal maintenance can only be ordered by a judge after a divorce trial. There are, typically, limitations put on the awarding of spousal maintenance the most of which is that you and your spouse must have been married for at least ten years for a judge to be able to award spousal maintenance. Even then, the spousal maintenance award can only last a limited period.

As with most areas of the law, there are exceptions to this rule. One of those exceptions applies to a spouse who is disabled. In today’s blog post from theLaw Office of Bryan Fagan, we are going to discuss what you need to know in your divorce if either you or your spouse is disabled. We are going to examine the relevant issues in this type of case to determine whether either of you can be classified as disabled for a divorce case and what sort of spousal maintenance award may come as a result of that designation.

Let’s take a hypothetical situation to illustrate what we mean when we talk about spousal maintenance for a disabled spouse. Suppose that you and your spouse got divorced and it was determined by a family court judge that you were disabled and were eligible to receive spousal maintenance from your soon-to-be ex-husband. The amount of spousal maintenance that you were awarded topped out at $750 per month. Your husband’s income was reviewed as well as your limitations and ability to provide for yourself from a financial perspective. You had always relied upon your spouse for income and now that you are getting divorced that would soon be going away.

There are some circumstances that the judge anticipated possibly happening and therefore he required that you include them in your Final Decree of Divorce. The first is that four years could pass and then the judge would want you back in the courtroom to determine whether or not your circumstances have changed sufficiently to no longer need spousal maintenance. What if your disability is no longer in place or you have found a medication that allows you to function better? If this occurred a judge would want to review the situation to figure out if spousal maintenance would no longer be needed. As a rule, Texas judges are not overly excited at the idea of awarding spousal maintenance.

Next, the judge said that if you get remarried then spousal maintenance would no longer need to be paid by your ex-husband. This one is self-explanatory. Remarriage is a condition as stated within the Texas Family Code that if this were to occur then the spousal maintenance would no longer have to be paid by your ex-husband. Spouses must support one another financially and as a result, your ex-husband would no longer have that duty to support you.

Fast forward the four years as stated within your Final Decree of Divorce and you are still requesting that the spousal maintenance order be declared valid and to have the maintenance extended out for another four years. Your ex-husband, not surprisingly, disagrees with your petition to extend the spousal maintenance and believes that your condition is better than it was four years ago and that you can work again. Since the Texas Family Code states that if you continue to satisfy the criteria used within the Code book to determine maintenance based on disability then you can continue to receive the spousal maintenance.

What a judge will look at primarily when deciding the issue of spousal maintenance is whether you can provide for your minimum, basic needs without the spousal maintenance being awarded. The court would like you to be in a situation where you can pay your way and not rely upon your ex-husband for money to pay the bills and make your way in life. However, spousal maintenance acknowledges that this may not always be possible and as a result, you could be in a spot where you have no choice but to ask for and rely upon spousal maintenance. However, this does not have to be a permanent set up- hence, why the court had requested that you come back to them every four years to determine whether the award needs to be extended out.

The standard for presenting evidence in spousal maintenance based on disability scenarios is a preponderance of the evidence. This is the burden of proof that is in place for most civil cases. The preponderance of the evidence simply means “more likely than not” as far as whether the maintenance is necessary to meet your minimum basic needs. This is as opposed to a reasonable doubt standard that many of us are familiar with from the criminal law side of things. It is easier to prove something that relies upon a preponderance of the evidence standard as opposed to a beyond-a-reasonable-doubt standard.

Making an argument for spousal maintenance based on your receipt of government benefits

One of the arguments that you could make in this hypothetical situation is that your receipt of Social Security Disability benefits was proof enough that you should be found disabled and in need of spousal maintenance by the family court judge. That your ex-husband proposed the idea of you applying for disability and helped you complete the application would also tend to show that some evidence exists that your ex-spouse agrees with your position that you are disabled or at least that you were disabled at the time you completed your application for disability insurance benefits through the Social Security Administration.

A key factor in this discussion is that even if you made these points to the court in your review hearing, a family court judge is not bound by the decisions of the Social Security Administration when it comes to determining if you are disabled enough to continue receiving spousal maintenance. There are age-related rules in the world of Social Security that start to come into play once you turn 50 years old. These rules are designed to make it easier for older people to qualify for benefits. The net result of this is that you could be found capable of performing certain types of work but based on your age you may still be able to receive benefits. This is just one reason why a court may not find you disabled even if the Social Security Administration believes you to be.

Additionally, suppose that you submitted no additional evidence in your review hearing other than that you were also receiving disability through Social Security. A family court judge needs you to provide evidence that you are still incapacitated or something approaching incapacitation to award you spousal maintenance. You do not need to be incapacitated for the Social Security Administration to award you benefits. What you may learn from this process is that it may be easier for you to be awarded disability benefits through Social Security than to receive spousal maintenance benefits through a family court.

Of course, you may also be in a position where you end up moving in with another person with whom you are engaged in a romantic relationship. This is a condition that would wipe away your ex-husband’s obligation to pay spousal maintenance. The tricky part in this situation is that your ex-husband would need to prove the existence of a romantic relationship as well as cohabitation. This is a scenario where his attorney may need to send discovery requests to your lawyer, seeking to have you admit or deny that you were in a romantic relationship and cohabitating with your significant other. Other types of evidence can be submitted to prove a relationship as well as cohabitation.

Do you or your spouse have a disability? Here is what you need to think about

As you can already tell, going through a divorce as a disabled person presents additional challenges. The same can be said for a person who is currently or has formerly been married to a person who considers themselves disabled or has been determined to be disabled either by a court or another body or governmental group. A court will want to ensure that you or your spouse can participate fully in the divorce process despite any disability which may be impacted their life. Accommodations may be needed in attending courtroom hearings or even in mediation. You and your spouse can work together to accomplish a settlement on issues like this or you can resort to the courtroom if a consensus cannot be reached between you and your spouse.

Consider also that there are long-term financial considerations, above and beyond even spousal maintenance, which will require some intentionality and planning within the divorce itself. We have had more than one person ask us if a disabled person can get divorced the same way that an able-bodied person can. The short answer is that a person with physical disabilities can participate in a divorce in a much more traditional way than a person who has a mental disability. Folks with mental disabilities may not be competent to represent themselves in a divorce. This does not mean that a mentally disabled person cannot go through a divorce, but it does mean that there will likely need to be some extra steps incorporated into the process so that you or your spouse can have protection in place so that your best interests are maintained.

A guardian, conservator, or other person may need to be appointed before the beginning of a divorce case so that your interests can be maintained throughout the proceedings. The court may even appoint a guardian or attorney ad litem almost like it would with a child to ensure best interests can be preserved, the non-disabled spouse is not taking advantage of the other party, and that the case can proceed without judicial assistance or intervention.

As far as the timeline of your divorce is concerned, you should expect that the need to have a guardian or conservator appointed to the case may delay the case to an extent. A hearing will need to be held, the judge will need to be able to declare whether you or your spouse are competent to act in the divorce without guardianship or assistance and then a guardian or attorney ad litem would need to be appointed. This will take some amount of time. Therefore, the typical four to six-month divorce may end up taking longer for you and your spouse.

However, you want to be involved in a divorce where all parties have an opportunity to be able to stand up, present their case, negotiate well, and otherwise have an equal opportunity to end up with a just result. When a disabled person goes through a divorce it means that there may be impediments that exist that can harm the case of you or your spouse. Even if you were able to negotiate a favorable outcome to the case for yourself the outcome could be appealed by your spouse or a representative of theirs in the future. The last thing you want is to have the outcome of your divorce overturned upon appeal for any reason.

Another interesting scenario could arise if you are the guardian or take care of your spouse due to their disability. Whatever expenses are incurred because of caring for your spouse need to be a factor in the divorce settlement. Think about all the services which you provide to your spouse: cooking, cleaning, bathing, dressing him or her, helping him or her travel- the list goes on and on. This could be a situation where your spouse lacks the resources to care for him or herself after your divorce is finalized. Again, this is where spousal maintenance may be necessary to care for your ex-spouse even after you are already divorced. It may be necessary for your spouse to also investigate governmental assistance and programs to be able to help pay for these costs now that he or she will be a single adult soon.

Social Security benefits are examined further

Whether you are a disabled spouse or the non-disabled spouse, you need to understand how a disabled person can support themselves in the years following a divorce. The amount of disability from the Social Security Administration that a disabled person receives can impact how much that same person receives both in spousal maintenance as well as in child support. As a rule, the more a disabled person receives from the Social Security Administration the less he or she can be paid in child support or spousal maintenance.

On the other hand, if you are a disabled person who is going through a divorce then you may still be entitled to receive a portion of your former spouse’s Social Security benefits even after you have gotten a divorce. Let’s say, for example, that you are over the age of 62 and that you and your spouse had been married for at least 10 years before your divorce. If you are also entitled to Social Security disability benefits, then you may be able to claim those benefits under your former spouse’s name rather than your own. This could allow you to receive more money given that your former spouse likely earned more income than you have throughout your lives.

Care for minor children

Another consideration is that you and your spouse need to pay close attention to the disabled spouse’s ability to care for children independently and without assistance. Even if your spouse can care for the children on a day-to-day basis, he or she may need financial assistance to be able to do so. On top of that, there may need to be a change to the possession and visitation schedule to accommodate the needs of your former spouse. Or their physical or mental disability may prohibit them from fulfilling the obligations of a primary conservator altogether. For this reason, it is a good idea to rely upon the advice and perspective of your experienced family law attorney. He or she can help you to determine whether you are well positioned to achieve certain goals you may have for yourself in a disability case.

There are no one-size-fits-all prescriptions to fix problems and issues in a divorce involving a disabled spouse. However, to take advantage of the options that you have available to you it is a wise idea to work with an experienced family law attorney. Doing so can increase the likelihood that you act intentionally and can achieve whatever goals you have set out for yourself.

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