Here’s a question that was posed to me recently in a consultation with a potential client of the Law Office of Bryan Fagan, PLLC: can spousal maintenance be awarded to a person after their divorce has already been completed? This person that met with me had suffered a stroke two months after her divorce had completed and now was unable to work or provide for her basic needs. She came in to see whether or not she could file a modification of her divorce decree to take her new disability into account. After all- the divorce had not been over but for a couple months. Was this possible, she wondered?
Unfortunately for this person the loss of a job or the development of a disability like she had to go through are not reasons enough for a spousal maintenance order to be inserted into the other obligations contained in final decree of divorce. In fact, there is no way that anyone (for any reason) may re-open the divorce in order to get a spousal maintenance provision included in the divorce decree. This is intended to protect spouses and not attempt to re-litigate a divorce after its conclusion- even if the conclusion was only a few months ago.
How to enforce the terms of a spousal maintenance order
An enforcement case is a quasi criminal case that bears with them the potential for jail time as a consequence of failing to abide by the terms of a family law order. In the case of a spousal maintenance award, a court may enforce the order for spousal maintenance whether it was rendered by a judge or agreed to by the parties in mediation.
A question remains whether alimony payments and an order mandating payment of alimony from one spouse to another is enforceable by contempt (jail time). Alimony is a contractual debt that is paid from one spouse to another as opposed to spousal maintenance which is more akin to child support as a form of income. A person who owes another person a debt cannot be jailed for failing to make timely payments and as such most courts I imagine would not allow you to utilize contempt of court as a mechanism to spur payment.
Please note that there are prior Texas cases where your ability to enforce a maintenance order by contempt is not absolute. The overarching (general) practice of courts in Texas is to allow for contempt as a punishment for the failure to abide by a court’s order in regard to spousal maintenance. To ensure that you are in a position to do so I would recommend that your order be drafted very meticulously. This means the language utilized to cover spousal maintenance should be specific with clear terminology that can tell the judge in plain language what the expectations are for the party who is obligated to pay the maintenance.
Potential defenses in an enforcement case involving the failure to pay spousal maintenance
If you are in a position where you are needing to defend yourself against a spousal maintenance related enforcement case you do some defenses that you can present to a court. For instance, if you did not have the ability to pay the spousal maintenance as ordered then you should offer this defense to the court. Did you lose a job and been unable to find replacement work? Did you yourself become disabled (even temporarily) and therefore find yourself unable to work? If so then you should be sure to specify this for the court.
Short of having cash on hand, a court would look to the resources that you have available to you in order to pay your spousal maintenance obligation. If you lack property that could be sold to come up with the funds to pay the spousal maintenance as ordered you can present this type of defense in an enforcement case.
The final two defenses that are commonly utilized in a spousal maintenance enforcement case are either being unable to locate a person from whom you can borrow money to pay spousal maintenance or you were unable to borrow money form a source that you had previously identified. If a court is willing to say that you should borrow money to pay the maintenance you can see that you must exhaust every resource available- including taking out loans and/or selling property- in order to meet the obligation.
Can your wages be withheld in order to your spousal maintenance obligation?
Much like when it comes to child support a wage withholding order can be filed with the court and sent to your employer in order to take out a specific amount from your paycheck on a regular basis in order to pay spousal maintenance. This is especially the case if you have fallen behind in your payments before and it is shown to a court the filing of a wage withholding order is necessary in order for you to meet your obligation.
Temporary Spousal Support while your divorce is ongoing
You are able to ask a court to have spousal support be paid to you on a temporary basis during the pendency of your divorce. A court can also order this on its own even if you have not done so yourself. This is a lifeline of sorts that will protect you and your ability to live a basic lifestyle while your divorce is in progress. Keep in mind that this is no guarantee of future payments after the divorce. We see this occur with some frequency in divorces where one spouse controls the finances and earns the community income while the other does not earn an income of any sort and has no control over the family finances.
If you believe that you will be in need of temporary spousal support then you should request it in your petition for divorce or in the answer that is filed in response to the petition for divorce. The key here is that a detailed and accurate financial statement will need to be presented to the judge prior to any hearing on this subject in order so that you can capture the present state of your personal finances.
A court will determine your specific need for temporary support and will make an award as such. Both your needs and the ability of your spouse to pay the support will be considered. Spousal support is not intended to help you live the same type of lifestyle as your spouse during the divorce, but rather to help you subsist until a later date when you become able to work and earn a sufficient income to provide for yourself. Finding a job, even if you just won a temporary spousal support award, is a great idea.
Questions on Spousal Maintenance or any subject in family law? Contact the Law Office of Bryan Fagan, PLLC
The attorneys with the Law Office of Bryan Fagan, PLLC appreciate you spending these past few days with us reading about the important subject of family law. We hope that the information we presented will assist you in your particular legal situation.
If you have questions about anything you’ve read please contact us today. We offer free of charge consultations six days a week with one of our licensed family law attorneys.