Frequently referred to as “alimony” spousal maintenance is a relatively recent phenomenon. In fact, Texas was the last state in the country to create a law that allows a court to obligate a person to pay their ex-spouse a sum of money in the future. Prior to 1995 parties to a divorce case could agree on their own accord to this sort of arrangement, but if their case went to trial a judge could not make orders to this effect.
If you are in a position where you believe that you are in need of spousal maintenance after your divorce this should not leave you too optimistic, however, at your chances of actually obtaining support. Consider that on the whole spousal maintenance awards still occur in relatively few divorces where the support is actually requested by one of the parties. In addition, there are limits to the amount and duration of the support once it is actually awarded.
Limits of duration and amount that apply to spousal maintenance awards
In general terms, spousal maintenance is limited to either $2,500 per month or 20% of the obligor spouse’s monthly income whichever, is lesser. In addition, spousal support cannot be ordered by a judge for a longer period than three years. The reason for these fairly restrictive measures is that spousal maintenance is not intended to be something that an ex-spouse can or should be relying upon for assistance much beyond their divorce.
After your divorce if you find yourself in a position where your spouse was the primary bread winner and you need some time to get your feet on the ground and find a job, spousal maintenance can be of great assistance to you. Many of our clients were previously homemakers who had not worked outside the house in many years. For these folks, spousal maintenance can be absolutely essential to their post-divorce transition and to meet their minimum, basic needs.
Are you eligible to receive spousal maintenance?
You may be eligible to receive a spousal maintenance in your divorce for a number of reasons. Perhaps the rarest (thankfully) of the reasons is if your spouse from whom you are requesting spousal maintenance by paid was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence. Those offenses must have occurred either within two years before the date on which your divorce was filed or occurred during the divorce proceedings themselves. This is an extreme example of how spousal maintenance may be owed to you and hopefully it is not relevant in your situation, obviously.
Let’s discuss a more likely reason why you may be eligible to receive spousal maintenance as a result of your divorce. If your marriage lasted ten years or longer and you lack the resources including property to sustain yourself and meet your minimal basic needs after the divorce you would be eligible to receive spousal maintenance. Note, however, that the property and income awarded to you in the divorce counts in this equation. As a result of the dividing of the community estate you may no longer be able to say that you cannot meet your minimum basic needs.
Additional factors are considered in this process as well. For instance, if you are unable to support yourself through working a job due to a physical or mental disability this would give you additional leverage to be able to gain a spousal maintenance award. Likewise, if you are the primary caregiver for a child with disabilities that require your constant supervision and this keeps you from working you are more likely to be awarded spousal maintenance as well. Finally, if your education and work history do not allow you to earn sufficient income to support yourself in the job market then you should certainly ask the court for this to be considered.
How will your divorce court define minimum basic needs?
There is no specific definition of minimum basic needs that is provided in the Texas Family Code. The intent of lawmakers who created the statute was to provide a spouse with some temporary income that can help him or her establish a residence and find work after a divorce.
To be awarded spousal maintenance you would need to provide sufficient evidence to a judge to prove that you do not have the resources of income sufficient to provide for those minimal basic needs. A judge will make this determination on a case by case basis. Your circumstances- financial and otherwise will be measured in order to determine if it is appropriate to award you spousal maintenance.
If you are a spouse who may be on the hook for paying spousal maintenance you should be aware that as a defense against its being awarded you can request that the judge make a specific determination as to what the minimum basic needs of your spouse are. After that, you can ask for additional, specific findings as to what the fair market value of the property is actually worth that was awarded to your spouse in the divorce. Remember that the community property awarded to your spouse as well as their separate property count towards assets that can assist your spouse in meeting their minimum basic needs after the divorce.
Is there a way for you to be awarded spousal maintenance even after being awarded substantial amounts of property in your divorce?
From my experience, it is possible that you could win an award of spousal maintenance from a judge even if your awards of property (both community and separate) are quite substantial. The bottom line is that even if the property awarded to you is substantial, it would need to be sufficient to provide for your minimum basic needs.
To make this sort of determination a court would need to get into a fairly in-depth analysis of your living situation and what your costs of living are likely to be after the divorce. On top of that, your likely income and resources available to you would be considered also. If you are awarded property that is not easily liquidated that is another factor that could lead to a spousal maintenance award despite a large property award being made also. Consider also that your education, physical abilities and inability to work on a full time basis would also be important factors.
How do you ask for a spousal maintenance in a divorce?
Spousal maintenance should be asked for and requested in your Petition for Divorce. If you did not do so initially you ought to consider filing an amended petition that includes your request for spousal maintenance.
Recall that it is not easy to be awarded spousal maintenance in Texas. Unless you suffer from a physical or mental handicap that keeps you from working this presumption will hold true in your divorce. In spite of this presumption you can be awarded spousal maintenance but must first show a court that you diligently looked for a job during the time period that you and your spouse were separated and your divorce was pending.
For instance- have you applied for jobs during your divorce? If so, you will likely need to produce job applications to prove this to a judge. Have you enrolled yourself into any inexpensive vocational training that could help you bring some of your skills up to date if you haven’t worked in many years? Any materials like this would be very helpful in providing your diligent search for employment rather than a reliance upon spousal maintenance.
Interested in learning more about spousal maintenance? Read our blog tomorrow
We will continue to discuss this important topic in our blog tomorrow. In the meantime if you are interested in learning more about our office or about the field of family law please feel free to contact The Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with a licensed family law attorney. We take great pride in representing the interests of our clients and look forward to discussing with you the services that we can provide to you and your family as a client of ours.