For the past few days, we have been discussing the topic of court-ordered spousal maintenance here on the blog for the Law Office of Bryan Fagan. I hope that the information that we have shared has been helpful for you and can lead you in the right direction as far as formulating a plan for your divorce case. While it is unlikely that you will actually have court-ordered spousal maintenance in your circumstances it is possible should your case make it all the way to a trial.
On the other hand, if post-divorce spousal support is going to be a part of your life then it is likely to be a result of your having negotiated for it either in mediation or in an informal settlement negotiation. This negotiated for spousal support is called contractual alimony and will be the topic of today’s blog post.
What is contractual alimony?
Contractual alimony is when your spouse voluntarily offers to pay you post-divorce support payments for a certain period of time. You and your spouse would theoretically come to an agreement in mediation whereby a certain sum of money is paid to you on a monthly basis for a certain period of time. Since the agreement is come up with by you and your spouse you can arrive at a settlement structure that is much more flexible and fitted specifically for you and your family as opposed to a court order that is more “by the book.”
You and your spouse will decide when these payments come to an end. The factors that will cause court-ordered spousal maintenance to end- death of the spouse who is receiving the money, cohabitation of the receiving spouse with a member of the opposite sex or remarriage- are all still applicable here. However, other conditions may be imposed that will allow you and your spouse to determine when is an appropriate time to end alimony payments.
I have even seen spouses negotiate for the paying spouse to take out a life insurance policy with the beneficiary listed as the spouse who will be receiving the contractual alimony. The set up is that if the paying spouse were to pass away, there would still be a large sum of money available to be paid for the receiving spouse’s necessary expenses. That life insurance income could also be invested in order to allow it an opportunity to grow.
Who is able to receive contractual alimony?
If you remember yesterday’s blog post then you should recall that we went through a number of qualifications that must be in place in order to receive spousal maintenance payments. Today’s discussion will be much more straightforward because there are no conditions precedent that must be in place for you to qualify to receive contractual alimony.
The purpose of the contractual alimony is to either supplement the relatively small income of the receiving spouse or to act as the main means of subsistence if the spouse is either disabled or cares for a child who is himself disabled. You and your spouse could even agree upon a rather modified version of contractual alimony where the payments are made to you for a short period of time during which you will be selling your marital home and moving into an apartment that you will rent. If you are trying to sell your house and keep the kids inside of it until a new residence can be located, you will need to pay the mortgage and keep up with the bills. Some spouses will agree to abbreviated payments of contractual alimony like this in order to maintain some stability in the children’s lives in the time period immediately following the divorce.
Another relatively short period of time during which contractual alimony could be paid is if you were to go back to school to obtain or finish a college degree. That college degree could be used to get into the workforce or get back into an old area of the workforce that required you to receive supplemental training or education. The contractual alimony would be paid for only so long as it takes you to get that college degree completed and find a job. After which time you would be responsible for your own bills and other costs associated with daily life.
Cohabitation is not necessarily a bar to receiving contractual alimony
While it is possible that your contractual alimony could stop once you move in with a romantic partner, that is not always the case. In instances where you are receiving court-ordered spousal maintenance, you will find that this scenario always ends those payments. However, if you and your spouse are negotiating on the terms of your contractual alimony it is necessary for you to be able to insert that language into the decree in order for it to be a way for your ex-spouse to no longer pay you. If you fail to include it, your ex-spouse could still be responsible for paying you contractual alimony while you are cohabitating or even remarried.
Enforcing a contractual alimony order in Texas
The risky part of agreeing to receive contractual alimony from your spouse is that there are no mechanisms under the family laws in Texas to ensure that the payments are made to you in the same fashion that you had agreed to in the final decree of divorce. In the event that your ex-spouse fails to pay you, the agreed upon amount of contractual alimony you could file enforcement in family court in response, but the judge would treat it like a business dispute and apply general civil law to the case rather than the Texas Family Code.
What does this mean for you? Well, first of all, a judge could not order jail time in the event that your ex-spouse violates the court orders regarding contractual alimony. On the other hand, had your ex-spouse violated the court orders regarding spousal maintenance you could ask for and be granted relief wherein your ex-spouse goes to jail for having missed those payments. A fine cannot be levied, either, for those missed payments of contractual alimony.
Here is the other important aspect of a court’s limited ability to enforce a contractual alimony order. If you and your spouse agree to have him pay you $2,000 per month for the rest of your life this could be a pretty great deal for you- if he pays according to your plan. If he does not and you file an enforcement case the court is limited to enforcing the order only for as long as it could order spousal maintenance to have been paid. For example, if you were married to your spouse for only 11 years the court could not order spousal maintenance to have been paid for any longer than five years. This too would be the durational requirement in regard to your contractual alimony case. A judge cannot enforce an order that allows for a longer duration of payment that would be allowed in the event that your spouse would have had to involuntarily pay you spousal maintenance.
What to do if you want to pursue contractual alimony
The more information that you and your spouse have during the divorce the more likely you all will be able to negotiate successfully on that subject. This means that an exchange of financial documents and projections of future costs should be done early on in your case. If you have this information available to you it is less likely that you would ask for far more alimony than your spouse has the ability to pay. From your spouse’s perspective, if he believes that you are being unrealistic in your requests for alimony there is no harm in him declining to negotiate with you because he knows that a judge would side with him if there is no basis to your request for alimony.
Alimony negotiations are only a portion of the overall financial discussions that you will have in conjunction with your divorce. Keep in mind that you will also be negotiating to divide up your community property estate. In order to maintain credibility with your spouse and to not alienate him you should be sure of what resources are available to be allocated your direction for the purposes of contractual alimony. Again, if you ask for a much larger amount of money that is available you risk not being able to seriously negotiate in any subject regarding money because your credibility will have been seriously lessened in the eyes of your spouse.
Having no credibility in the eyes of your spouse means that he does not trust you. A lack of trust could mean that he is more likely to try to hold onto or guard closely community property assets. Be absolutely sure of the numbers before you attempt to negotiate on contractual alimony. Your spouse may not even dispute that you need some amount of alimony but if you ask for an amount of money that is double what he is able to pay on a monthly basis that could cause a lot of ill will to develop between you and him.
Spousal support and its impact on child support in Texas
Taxes are a huge part of the negotiation process when it comes to spousal support. Obviously, your goal should be to keep as much money in your family’s hands and out of the hands of the government. Many family law attorneys have the ability and experience to draft language into your final decree of divorce that allows for you to take advantage of ways to pay as little in taxes as possible on any money that is going your way in the divorce.
Be realistic about your need for post-divorce support
In my opinion, you ought to be one hundred percent sure that you need post-divorce support from your spouse before seriously pursuing it in your divorce. If you need it there is plenty of justification for stretching out your case and going all the way to a trial if necessary in order to obtain that kind of reward. You cannot go to your ex-spouse after the divorce and attempt to get it at that time so now is the opportunity provided to you under the law to do so.
However, I would also tell you that you need to look long and hard at your finances in order to determine if paying legal fees to your attorney in order to attend court regarding spousal support is justified. If you are not in a strong position to offer evidence to a judge that you need this type of supporting the adventures in court could end up costing you a lot of money with little to no reward.
Talk to your attorney at the beginning of your case and make him or her aware of your desire to ask for spousal support. He or she can guide you on the chances that you will be successful in either negotiating for that support or winning it in a trial. If your case is not strong on that front consider shifting your focus to obtaining as much of your community estate as possible after a division occurs.
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Other Articles you may be interested in:
- 6 Tips - On How to prepare for a Texas Divorce
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- Spousal Support, Spousal Maintenance, and Alimony in Spring and Houston Texas and when is it available?
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- The Simplified Process for an Uncontested Divorce in Texas
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- Child Custody Basics in Texas
- 6 Mistakes that can Destroy Your Texas Divorce Case
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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.