If you are in a position where during your divorce you are asking for spousal maintenance as a disabled person you may first be disheartened to learn that there are limitations on how much and for how long the Texas Family Code allows for spousal maintenance to be awarded. The rule is that a judge must consider the least amount of money possible and the least amount of time possible for the award to last. This is generally stated as being no more than 20% of your spouse’s net monthly income for an amount and three years as far as a duration for the award to last.
However, take heart in the fact that there are exceptions to these rules. In your situation as a person who suffers from a physical or mental disability it is likely that you are unable to find and sustain employment that would otherwise solve your income problems. Today’s blog post from the attorneys with the Law Office of Bryan Fagan, PLLC will discuss this topic and provide you with information that you can utilize to help you in your own divorce case.
Exceptions to the limitations on spousal maintenance when you are disabled
The general premise behind the award of spousal maintenance is that it is done in order to help ex-spouses who are able to provide for their minimum basic needs for various reasons. One of those reasons is a physical or mental disability that keeps you out of the workforce. Keep in mind this exception also extends to you if you are the caretaker for a child with a disability that requires constant intervention and care.
In these type of instances a court can award you spousal maintenance for an indefinite period of time in order to cover you for as long as the disability continues. Note that our Family Code does not require that your divorce decree state that the maintenance award is based on a significant physical or mental disability. Given that these are the only reasons why a court can order spousal maintenance to last more than three years, such a reading is implicit.
One thing to keep in mind is that in this situation a court will periodically review your lifestyle and needs if you or your ex-spouse request that this be done. Many times people with disabilities get better (thankfully) and therefore the indefinite or extended period of spousal maintenance may no longer be justified. A motion to modify the spousal support award may be attached to this sort of proceeding if your spouse believes that your disability or that of your child is no longer sufficiently debilitating to require the spousal maintenance- at least at its current level and duration.
Is medical evidence required to prove that continued spousal maintenance is necessary?
A court case out of Dallas in 2001, Pickens v. Pickens, should shed some light on this subject. In that case an appellate court judge ruled in favor of the spouse who had been receiving spousal maintenance as per her divorce decree. The award of spousal maintenance for an indefinite duration was found to be justified. Medical evidence was not necessary to prove its necessity, either, based on statutory law.
How much spousal maintenance can a judge order you to pay?
Let’s put the shoe on the other foot for this section. Suppose that you are the spouse who is in the position to have to pay spousal maintenance to your spouse after the divorce concludes. Rather than anticipating an award you may be dreading the degree to which you will be responsible for making these spousal maintenance payments.
A court cannot order you to pay spousal maintenance that goes beyond $2,500 per month or 20% of your average monthly gross income, whichever of those is less. Essentially a cap exists that says you cannot be ordered to pay any more than $2,500 in most circumstances. Keep in mind that it is your gross income that is of concern when it comes to spousal maintenance and your net income that is of concern when it comes to child support. I mention this because it is typically the spouse who has to pay spousal maintenance who also has to pay child support.
Minimum reasonable needs is the key phrase for you to remember when it comes to spousal maintenance
Your judge, if he or she decides to award you spousal maintenance, will set the amount at only what you need to provide for your minimum basic needs. Circumstances like your ability or inability to work as well as the property share you received in your divorce will be considered. If you owned substantial amounts of property before the marriage then this will be utilized in the equation as well as far as how much and how long spousal maintenance can be ordered.
How and when an award of spousal maintenance can be terminated or modified
All good things (and bad things) come to an end. If you are receiving or paying spousal maintenance as a result of your divorce then you should be aware that the award is not permanent and can come to an end, even before the end of the period of time you were ordered to pay or receive the support.
A straightforward example of a reason why a spousal maintenance award may be declared void is when either you or your spouse pass away or remarry. The remarriage part of this issue is the one I would like to discuss for a moment. It does not take remarriage for a spousal maintenance award to be overturned. Your spousal maintenance award may be overturned and terminated if it is found that you are cohabitating with another person on a consistent period of time and engaging in sexual relationship as well. This has all the hallmarks of a “live in” significant other and it is assumed that there is financial assistance and reliance occurring as well.
How to modify a spousal maintenance order
A motion can be filed to modify a spousal maintenance award contained in your final decree of divorce. You would file this motion in the court that heard your divorce case. You must note the portion of the divorce decree that covers spousal maintenance and then state your rationale in the motion as to why the spousal maintenance needs to be modified. Keep in mind that a family law court cannot increase your level of support, it may only decrease it.
After providing notice to your ex-spouse that you have filed a modification motion a hearing will be set in order to provide your reasons to the judge as to why the spousal maintenance award needs to be modified. Keep in mind that a substantial change in circumstances must be shown in order to win the modification that you are seeking. This could be a change in circumstances shown by you, your ex-spouse or a child of your marriage. How do the maintenance recipient’s financials compare now to back when the award was rendered? This is what a judge will be looking at when he or she determines whether a modification is justified?
More on spousal maintenance in tomorrow’s blog post
If you are interested in this topic please come back tomorrow as we continue to discuss the ins and outs of spousal maintenance law in Texas. In the meantime if you have questions for one of our licensed family law attorneys please do not hesitate to contact us today. We offer free of charge consultations six days a week with one of our licensed family law attorneys.