Alimony is a subject that is brought up a lot in divorce cases. I think that because it is a subject that we hear about a lot in movies and television shows that people assume that alimony is almost always paid out in divorces. At least in Texas that is not the case. While Texas family court judges can award post-divorce spousal support it is known as spousal maintenance in Texas. The awarding of spousal maintenance by a judge is a relatively new phenomenon having been passed by tour State Legislature into law only in 1995.
Spousal maintenance is not alimony. Texas family law is specific about this were you to ever go through a divorce. Contractual alimony is a “thing” in family law, but it is an agreement made between spouses before a trial. Contractual alimony may look like spousal maintenance but there are key differences between the two. Most notably, spousal maintenance is ordered by a judge while contractual alimony is agreed to by spouses before a trial. This is a major difference and may factor into how these subjects are negotiated in your divorce case. A judge can enforce contractual alimony after your case is over but he or she cannot award contractual alimony in your divorce case itself.
A court can issue temporary spousal support during a divorce but today’s blog post from the Law Office of Bryan Fagan is going to focus on post-divorce spousal support, also known as spousal maintenance. Temporary spousal support, for what it’s worth, is easier to get during a divorce than spousal maintenance is after a divorce. As you are about to find out there are some specific factors in play that you must be able to satisfy to win spousal maintenance in a trial. What spousal support during the divorce ultimately amounts to is he or she is saying that a part of your community estate should be divided out to help you or your spouse pay for their expenses during the divorce (or at least part of their expenses).
The presumption that judges operate under is that a spouse does not need spousal maintenance to be awarded. This means that if you want your family judge to award you spousal maintenance then you will need to provide sufficient evidence of your needs to overcome this presumption. The better prepared you can be for your trial the better opportunity you will have to end up with an award of spousal maintenance.
How do you become eligible for spousal maintenance?
You need to be able to show a family court judge that you lack sufficient property to provide for your minimum reasonable needs after the divorce case is over. There are some additional points that I would like to make when it comes to having sufficient property to care for yourself and make sure that you have the essentials of life once your divorce is all said and done.
For one, your separate property will be considered when it comes to analyzing the property that is available to you after the divorce is over. Separate property is largely the property that you came into your marriage with. Additionally, if you were gifted or inherited property during the divorce then that property will also count as separate property. This is property that cannot be divided by a judge in your divorce and as a result will be yours after the case is over. Depending upon your circumstances this property could be a substantial amount- possibly enough for you to live on while you try to find employment or stabilize yourself after a divorce from a financial perspective.
Hopefully, you have not been the victim of an act of family violence during the prior two years of your marriage. However, if you were and your spouse was convicted or received deferred adjudication for that criminal offense you would qualify to be paid spousal maintenance. This is not a situation that you want to become eligible for spousal maintenance based on. However, you should be aware of this consideration if you have been a victim of family violence in the recent past. It may make a huge difference for you after the divorce case is done and over with.
If you have been a stay-at-home parent or spouse for an extended period then it may be that you have not gained much experience working outside the home. A lack of education, work experience, and skills translate into your job prospects not being all that great after your divorce is all said and done. As a result, if you can show that you are unable to earn enough income to provide for your minimum, reasonable needs then that is an important factor for a judge to look at when determining whether to grant your request for spousal maintenance. This alone does not guarantee that you will be paid spousal maintenance, but it puts it in the realm of possibilities to be sure.
Another qualifying factor that a judge will need to consider is if you suffer from a mental or physical disability that negates your ability to work. Being found to be on disability and unable to work can be a huge factor. Related to this factor is your being required to care for a child who suffers from a physical or mental disability. If you are caring for a child who requires continuous aid such that you are unable to work, then you are likely to be able to receive spousal maintenance in the divorce.
All these factors can qualify you for spousal maintenance without considering the length of your marriage. In other situations, you and your spouse would have to have been married for at least ten years for spousal maintenance to be paid. If you have not been married for ten years, then even a significant need on your part for financial assistance after a divorce would not be sufficient cause for a judge to order spousal maintenance.
How much and how long of an award for spousal maintenance can be issued in your case?
Just like there are factors for a judge to consider when awarding spousal maintenance there are also factors that a judge must consider once he or she has determined maintenance needs to be awarded. From there, the decision about how long to award maintenance for and how much maintenance should be awarded are the main issues to decide in your case. The duration of your marriage has a lot to do with how long spousal maintenance can be awarded.
A judge will need to look at your income-earning potential to determine how much spousal maintenance if any, needs to be awarded. How much income are you earning during the divorce? Your job, education, work experience, and skills are important when determining your likely ability to provide for your minimum basic needs. If you work a job that pays well and has a proven ability to provide for yourself then it is unlikely that you will be awarded spousal maintenance. On the other hand, if you are working a minimum wage job, have not worked in some time, and generally lack viable employment skills to be paid a competitive salary then your need for spousal maintenance may be greater.
If you lack the skills necessary to find competitive employment at the time of your divorce, then the option that you could choose to take would be to develop those skills somehow. This can be done simply by finding a job and working that job consistently. Depending on the job and your areas of interest this may be the most direct, practical, and inexpensive way for you to gain those skills. Knowing that you are going to need to develop those skills during a divorce probably means that you will need to find work during the divorce so that you can begin to get your feet underneath you from an employment perspective. From there, you can work consistently and gain the experience necessary to provide for yourself once the divorce has come to an end.
Judges will look to see if you are doing everything in your power to earn an income independently rather than asking for spousal maintenance and doing nothing else. If you are disabled or if you are caring for a disabled child, then that is a different situation. However, for everyone else you need to be working or developing the skills necessary for working. On a practical level, it is better to simply go out and try to find work rather than to begin a four-year plan to earn a college degree during the divorce. While this may be a worthwhile goal to have it is not the most reasonable undertaking during a time when you are going to be pushed to your limits as far as stress, time, and money. As a part of your ten-year plan, it may be wise to go back to school but as a part of your six-month divorce plan, this may not be the direction that you need to head.
When you are seeking spousal maintenance payments as a part of a divorce you need to be able to prove to him or her that you have tried to find suitable employment that can meet your minimum reasonable needs. That you were unsuccessful usually needs to be the result of that search for you to be awarded spousal maintenance in the divorce case.
What are the minimum reasonable needs in a Texas divorce?
The judge in your case will decide this based on the facts and circumstances that you and your spouse present to the judge. It can be as simple as the judge breaking down your budget and determining what your income is and what your "outgo" is. For example, if you show that your minimum reasonable needs are $2,000 per month but you have income that is $2,7000 per month then you may not be awarded any spousal maintenance. On the other hand, factors like the nature of the work that you perform, your housing situation, your spouse's work, and your income can all factor into the decision that a judge must make. As we indicated a moment ago, judges consider all of this information on a case-by-case basis. What happened to a friend or neighbor in their divorce probably will not be that helpful to you since your facts and circumstances are unique to the divorce that you and your spouse are going through.
Your monthly income may be less than what your monthly expenses prove to be, but that does not necessarily mean that a judge is going to award you spousal maintenance. For example, if you showed that your monthly income was $9,000 but your monthly expenses were $9,500 then you may ordinarily expect to be able to receive spousal maintenance. However, a judge may look at your budget and determine that some of your monthly expenses are not reasonable or can be cut in certain areas. Grocery bills, clothes shopping, and even extravagant car payment are areas of your budget that you can cut to lessen your monthly expenses. Along the way, remember that what you consider to be your minimum reasonable needs may not be the same as what a judge considers to be your minimum reasonable needs. Spousal maintenance is not intended to allow you and your children to live the lifestyle that you all have become accustomed to.
What your minimum reasonable needs are will change depending on your budget and the financial expenditures of your household each month. Are those expenses reasonable in the opinion of the judge? That is how you should approach this topic when you negotiate on spousal maintenance. A judge may disagree that sending your children to private school is reasonable if you live in an area with a highly rated public school system. Keep in mind that you can appeal the result of your divorce when it comes to spousal maintenance but there is certainly an expense factor to consider. You would need to do the math to determine whether it was worth your while to appeal the judge's decision when it comes to the possibility of not being awarded spousal maintenance.
The final subject that I wanted to discuss in today's blog post is contractual alimony. When spouses agree for contractual alimony to be paid it is usually done for a limited period. The income that is paid from spouse to spouse can allow you to have a steady amount of income coming in each month while you are adjusting to life after the divorce, going back to school, or making plans to do something that will allow you to earn a sufficient income to pay your bills. In some cases, there may be insufficient community property to divide up to help you keep your head above water. In that case, you and your spouse could agree to contractual alimony to help you from a financial standpoint during the period following your divorce.
If you and your spouse own community property that is worth $2 million, then this is a fairly large estate to divide up. That estate could be comprised of a family home, vehicles, and investments. If you are a younger person who earns less than your spouse you would need cash at this time of your life more than you would need to be awarded a significant portion of your spouse’s retirement account. Retirement accounts typically cannot be accessed until a person’s late 50s or early 60s. As a result, negotiating contractual alimony with your spouse may be better for you than trying to negotiate over the retirement investments of your spouse. You can use the contractual alimony to help you keep your head above water and can use the rest of your working life to save up for retirement
Another factor to consider with contractual alimony is that you can have contractual alimony paid even in situations where you all do not meet the requirements for spousal maintenance to be awarded. Family violence, a marriage ten years or longer, disability, and proven economic needs are tight circumstances under which spousal maintenance may be awarded. On the other hand, you and your spouse are free to come up with any arrangement you would like when it comes to contractual alimony. This flexibility puts you two in charge rather than leaving the issue to a judge. For many people, simply being able to negotiate through the subject matter with your spouse can make a world of difference.
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 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.