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A discussion of the factors that will be applied by a judge when determining spousal maintenance

If your judge determines that spousal maintenance should be awarded to you in your divorce has to figure out how much, how long, and how the payments should be made to you from your ex-spouse. To decide these issues, a judge will look at the following factors:

  1. The separate property you owned before the marriage versus the individual property that your spouse entered into the marriage with. Suppose you lack any degree of the particular property, and your spouse has sufficient resources to pay you spousal maintenance and be in a strong position financially. In that case, this may help the judge to award you a higher dollar value of support.
  2. Any bad behavior that you displayed during your marriage. Did you engage in any wasting of community assets like spending money frivolously or on items that were only expected to benefit you and not your spouse? Did you have an affair that directly impacted your marriage and led to divorce? If so, you may not be in as strong of a position as you otherwise would be because of this factor.
  3. Have you sought work or income beyond spousal maintenance? From my experience, this is a significant factor and will be given a great deal of weight by a judge. Assuming that you are not disabled and have an education that is at least at the high school level, a judge will look at your history of attempting to find work. Have you filled out applications? Have you attended courses offered at community colleges or vocational centers to update your skills? Be prepared to present this sort of evidence.
  4. Where do you stand financially after your divorce? What debts and property were you awarded out of your community estate? What sort of separate property did you enter into your marriage with? These factors get to the heart of your liabilities and your assets to determine just how bad off you are from a financial perspective. If it appears that you will need some time to come out of a financial hole, your spousal maintenance award could be extended out for multiple years.
  5. How long were you and your spouse married? The longer the marriage, the better the spouse seeking spousal maintenance. Remember that you and your spouse must have been married for at least ten years to be awarded spousal maintenance. As you progress into the twenty-year range of marriage, you can expect to receive care for longer. Thirty-plus years of marriage means that a judge can award maintenance for an even more extended period.
  6. A judge will compare your employment background and education against your spouse's. What skills have you developed (if any) in your work history? Do you have any post-high school education? Do you have to go back to school to get a reasonably well-paying job? If so- for how long and at what cost will this education cost? If you will be the primary conservator of the children, is it feasible for you to wrap up your schooling quickly rather than have to drag it out over multiple years?
  7. What resources will be made available to you after the divorce versus what is made available to your spouse? Will you have health insurance after your divorce? If you were a homemaker and had health insurance through your spouse, your children are likely to remain on the insurance while you will have to seek private health insurance on your own. What retirement benefits does your spouse have available to them versus what you have? Again, suppose your spouse has been the income earner in your family since the beginning of your marriage. In that case, you will likely be sharing in those savings due to the division of community property. Still- if your spouse has access to resources that you do not post-divorce, these factors will help you maximize your return on the spousal maintenance.
  8. What are your contributions to the home as a homemaker? The additions to your family that you made through staying at home and raising children cannot be understated. Think about the work you do or have done daily- caring for children, cooking meals, cleaning the house, providing transportation- would be costly to your spouse if those jobs had to be replaced by someone else. As such, you have provided some quantifiable services to your spouse even if you were not paid for them. A judge will consider this factor and give a fair amount of weight.
  9. Finally, let's consider a situation that I have repeatedly seen when it comes to spouses, particularly wives, seeking spousal maintenance. Suppose that you and your spouse have been married for thirty years. At the beginning of your marriage, you stayed home to take care of your home and your children and worked at night waiting tables so that your spouse could attend medical school. Thirty years later, your spouse is a successful physician who is paid as such. While you may have wanted to go back to school, you did not do so at the request of your spouse in order so that your kids never had to attend daycare and always had transportation to school activities. Given the sacrifices you have made, a judge will consider these when determining the degree to which you can be awarded spousal maintenance.

The durational and dollar amount limits of spousal maintenance in Texas

Before we conclude today's blog post, I wanted to introduce what we will be discussing tomorrow. Now that we have gone over in detail what factors a court will be looking at in terms of spousal maintenance, let's go over the cold, complex numbers as far as what can be awarded to you in terms of support.

Unless you have a physical disability and cannot work, there is a three-year limitation on spousal maintenance awards by a judge. Keep in mind that a judge will also be looking not to maximize your honor but to keep it as small and as short as reasonably possible. Whatever the minimum award that can be awarded to meet your minimum needs, you can bet that this is what will take place in your case. The rationale behind making an award to you will likely be to allow you some time to job hunt, go back to school, or develop a skill that will enhance your ability to look for work. The exception to this rule is if you are physically or mentally disabled, have an infant or young child that you have to care for or have another significant reason why you cannot work.

Tomorrow's blog post will pick up where we left off today. Until then, if you have any questions about the subject matter that we covered today, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one of our licensed family law attorneys six days a week. We can answer your questions and address your concerns to provide you with information to make intelligent decisions.

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