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An Overview of Alimony in Texas

When it comes to understanding a complex subject like alimony in Texas, you must be able to consider not only what the Texas Family Code has to say but also what your specific circumstances are. This is where you can develop a deeper understanding of what sort of goals you can set for yourself and accomplish in a divorce. Knowing the law is one thing. Knowing your life is another thing. Combining the two and being able to assess how alimony is likely to play out in your divorce is the sweet spot as far as I’m concerned.

This is where having one of the experienced attorneys from the Law Office of Bryan Fagan can be to your advantage. By having one of the attorneys on your team you can focus your energies on not only your case but on the rest of your life. Your children, work, and other responsibilities do not go away just because you are going through a divorce. Our attorneys can guide you through the logistical and process-driven parts of your divorce while dispensing advice that you can use to your advantage. Along the way, when it comes to alimony our attorneys can help you to present the most accurate and fair case possible to accomplish whatever goals you have for yourself in this area of your divorce case.

What is alimony?

Alimony is when one spouse pays another money during and/or after a divorce case. These payments are intended to assist the recipient spouse pay their bills, surviving the divorce financially, or get back on their feet after the divorce has ended. One of the misnomers that many people have about alimony in Texas is that it is supposed to help the recipient spouse be able to live in the manner to which he or she has become accustomed. This is not the case. Alimony is intended to help the spouse who receives the payments be able to pay bills and survive until he or she can perform those actions on their own without the assistance of an ex-spouse. Many spouses go into a divorce with the assumption that they will be able to live the sort of lifestyle after a divorce that they had been living before the divorce. In most cases that is not realistic.

The term that is utilized in Texas to refer to this sort of post-divorce spousal support is called “spousal maintenance.” You may see the term shorted to just “maintenance” and sometimes you will see people casually refer to these maintenance payments as alimony. However, the Texas Family Code lists maintenance and alimony payments as being different so we will do our best to keep up with that definition here in our blog post today. Alimony is typically called “contractual alimony” and refers to spousal support payments that are made after a divorce which are agreed to between the parties rather than ordered by a family court.

How can you become eligible for spousal maintenance payments?

We hear about alimony not only from divorce blog posts like this one but also from the news, television shows, and movies. Alimony is a frequent topic on shows that revolve around wealthy people, divorce, and those types of scenarios. As it goes most of the time, the soon-to-be ex-wife of the wealthy businessman will demand alimony as part of a divorce. Her view is that she can live comfortably on these alimony payments for the rest of her days and will not have to worry about going to work once the divorce is done and over with. This is not a realistic approach to the subject of alimony or maintenance in Texas, however. As we will soon see not only are the maintenance payments not going to last forever but whether you or your spouse qualify to be paid these amounts is a subject that is not necessarily set in stone. Let’s examine how you or your spouse can come to qualify for spousal maintenance in Texas. From there you can decide whether this is even a subject that you reasonably need to be concerned with.

Both husbands and wives can request to be paid spousal maintenance during the divorce. It is not a subject that is limited to wives asking for spousal maintenance as some have expressed to me in the past. The key to this discussion is not sex or gender, but rather if you or your spouse have a proven need for the money to be paid. Does your spouse or you cannot provide for your minimum, basic needs absent spousal maintenance payments? This is the true test as to whether a judge would even consider ordering temporary spousal support during the divorce or spousal maintenance after the divorce.

Having a sufficient property to meet your minimum basic needs does not necessarily mean that a judge would look to your employment history as the only test. For one, many times even if you have never worked or have not worked in years you may still have property sufficient to care for yourself and keep the lights on after your divorce. This is because you may own separate property that can be sold or otherwise utilized to pay your bills once you are a single adult. Additionally, judges in most cases would prefer to divide up your community estate in such a way that you are awarded a disproportionate share of your community estate rather than having to award you spousal maintenance. Therefore, do not anticipate receiving spousal maintenance or think of it as a given. You need to truly lack the ability to pay your bills after the divorce even to give yourself a chance at being able to receive these sorts of payments.

On top of displaying an absolute need for these payments, additional circumstances come into play for a judge when he or she is considering the payment of spousal maintenance. Keep in mind that at least one of these circumstances must be present for a judge to consider ordering spousal maintenance payments. Sometimes the situation in your home is not clear as to whether you meet one of these circumstances or not. In that case, I would recommend contacting the Law Office of Bryan Fagan to discuss your specific circumstances further with one of our attorneys. The information we are discussing here in the blog is intended for a general audience. For you to receive a more pinpoint perspective and information about what you are going through specifically it is best to speak to one of our attorneys directly about those circumstances so that a more precise answer can be provided to you.

First, and hopefully, this is not a relevant factor for you, if your spouse was convicted of an act of family violence against you or your children within two years of your divorce having been filed then you will qualify for spousal maintenance. Keep in mind that the conviction for family violence offenses could have occurred during the divorce. As we mentioned earlier you must also display a proven need for maintenance based on an inability to meet your minimum, basic needs in terms of rent, clothing, food, and medical care after the divorce has concluded. An act of family violence probably means a domestic abuse situation. You can speak to your attorney about whether your spouse’s conviction(s) meet the definition of family violence and whether this circumstance alone makes you eligible for spousal maintenance in your divorce.

Next, the court could determine that you are eligible to receive spousal maintenance in your divorce if you are unable to earn enough income to be able to support yourself because you suffered an incapacitating physical or mental impairment or disability. This is a straightforward element but one that you should be prepared to back up, regardless. If you are receiving Social Security disability payments then you have a fairly strong case to make that you may require spousal maintenance payments, as well. If you have never worked during your marriage, then this may be a strong argument given that there is a long track record of your being dependent upon your spouse for income.

Please note that some disabilities or impairments can significantly erode or restrict the availability of jobs in the national or regional economies but the impairment or set of impairments that you suffer from may not disable you. Being disabled is not a condition that you automatically meet once you determine that you are not able to work. Rather, disabled is a formal term that at least in the context of Social Security benefits but be determined by the agency either at an initial level or by an administrative law judge. You may consider yourself to be disabled because you do have a legitimate limitation in your physical or mental functioning. However, to say that you are disabled in a legal sense means that someone (likely Social Security) would have made that determination through a legal proceeding of some sort.

All of this is to say that you need to have your ducks lined up in a row if you want to be able to effectively allege that you are disabled and unable to work. Letters from doctors, testimony from doctors or expert witnesses (in extreme cases), or paperwork from Social Security stating the nature of your disability are all helpful when it comes to proving to a family court judge that you are disabled. Furthermore, there must not be sufficient jobs in the economy for you to perform to allow you to remain eligible for spousal maintenance in the divorce.

A common way to qualify for spousal maintenance in a Texas divorce is by meeting the durational requirement as outlined in the Texas Family Code. If you and your spouse have been married for at least ten years, then you are eligible to receive spousal maintenance after the divorce comes to an end. Please bear in mind, however, that you would still need to qualify based on showing the court that you are unable to meet your minimum, basic needs without maintenance.

The final way that you may qualify for spousal maintenance payments in Texas would be because you are the custodial parent of a child who requires substantial care or personal supervision due to a mental or physical disability that prevents you from working and earning an income. This is another circumstance that we hope does not apply to you and your family but know from experience that it may. If you are the full-time caretaker for a child (of any age) and are unable to work and earn an income as a result of the care required by your child then you may qualify for spousal maintenance. Testifying your history of caring for the child, the inability to alternate forms of care, and other information about the nature of your caretaking may be necessary to provide the court to substantiate the position that you are making about caring for a disabled child.

What other factors are relevant in a discussion related to spousal maintenance?

When you are asking for spousal maintenance in a divorce know that the judge is starting from a position of presuming that you do not need the spousal maintenance that you are requesting. You will not receive the benefit of the doubt in this regard. Rather, you will need to effectively make the case that you need spousal maintenance. Rather, you will need to make the case to the judge that you need the money based on the circumstances relevant to your life. Here are some of those factors that a judge may consider when viewing your circumstances on a case-by-case basis.

If you have shown that you have tried your best to earn an income to support yourself during the divorce and have been unable to do so, then it is a good sign for you that you may lack the ability to care for yourself independently at least at this point in your life. Once you have shown that these circumstances apply a court will then consider some of these factors when determining your potential eligibility for spousal maintenance. How much money you could receive, how long and the type of payment method that would be necessary will all factor into this decision.

What is your ability to go out and earn a sufficient income to provide for yourself and your minimum basic needs? Let’s assume that you are not disabled, nor do you care for a child with a disability. If you have a basic high school, education and are able-bodied then we also have to look at the current job market and we can see there are plenty of jobs available for someone of your physical well-being and education. In that case, a judge would need to determine that the income that you would earn from one of these entry-level or unskilled occupations would be insufficient for you to be able to pay your bills and meet your minimum basic needs.

Next, your education and employment skills would be compared to those of your spouse. If your spouse has an advanced degree and works in a skilled career whereas you have a high school education and very little in the way of work experience, then this will be a factor in your favor if you believe that you require spousal maintenance after a divorce. However, follow-up points to be made in this regard is that if you can acquire the education or training fairly quickly that would enable you to care for yourself without spousal maintenance then this may be something a court would consider as well. For instance, if you are a few credits or hours short of earning a vocational degree or certification that would allow you to earn substantially more money than you are earning now then this may be a factor that is relevant for a judge to consider when assessing your case for spousal maintenance.

The last factor that we will consider in today’s blog post is your ages, employment history, and earning abilities of you and your spouse. Again, if your spouse has a track record of being an A high-income earner whereas you have never worked or have only worked on a limited basis then you would have a strong case for being able to argue that spousal maintenance is appropriate if only for a temporary period. Consider if you were the spouse who stayed home to raise the children while your husband or wife went out into the world to earn a substantial income. I believe this would be a factor that a judge would need to consider when potentially awarding spousal maintenance in your divorce.

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