Spousal maintenance, also known as alimony, is treated similarly to child support in Texas. If you are ordered to pay spousal maintenance to your spouse after your divorce is finalized and you do not do so then a judge can hold you in contempt of court. Contempt means that you failed to follow a court order. You can be fined or sent to jail as a result. However, if you are suffering through legitimate financial difficulties and can show a court that this is the case then you can request to have the spousal maintenance amount reduced or eliminated completely.
What happens if you agree to pay spousal support?
Spousal maintenance is the term used in Texas for when a judge orders you to pay spousal support after the conclusion of your divorce. However, it could happen that you agree on your own to pay spousal maintenance. This situation is called contractual spousal alimony. You may negotiate with your spouse to pay her contractual spousal alimony in exchange for retaining a larger portion of the property in your community estate. Keep in mind that just because the judge doesn’t order contractual alimony does not mean that he or she will not approve of its inclusion in your Final Decree of Divorce.
This sort of situation is a possibility for you if your spouse is formerly a stay at home parent, recently unemployed or is self-employed and attempting to gain a foothold in the marketplace. Spousal maintenance can be your way of ensuring that he or she stay solvent during an immediate one, five or ten year period after your divorce (or any number of years in between). Many parents need to go back to school to update their educational profile to apply for different job opportunities.
One key thing to keep in mind as we discuss contractual maintenance is that although a court can enforce an order for contractual maintenance to be paid, it cannot enforce any amount beyond what it has the authority itself to order. So, either $5,000 per month or 20% of your gross monthly income may be enforced (whichever is less), and not a penny more. If you fail to pay the spousal maintenance and your ex-spouse files an enforcement motion against you then you can expect to go to court but cannot be held in contempt.
When can spousal maintenance be terminated?
There are certain conditions that can arise that would allow for the termination of your duty to pay your ex-spouse spousal maintenance- be it ordered by a judge or mutually agreed to in mediation.
Simply put, if a court order that the spousal maintenance should cease (for any reason) the obligation is no more. Or, if you or your ex-spouse were to pass away then that obligation would also cease. Unless your Final Decree of Divorce states otherwise, your obligation to pay maintenance will end if your ex-spouse remarries or if a court determines that your ex-spouse has moved into a home with a person with whom he or she is in a romantic relationship with.
Can you be ordered to pay spousal maintenance on a temporary basis?
Temporary spousal maintenance is a real concept in Texas. It is commonly referred to as temporary spousal support. This type of award occurs with much greater frequency than does spousal maintenance. If you are a person who earns a great deal of money then it is possible that you could be ordered to pay temporary spousal support for the duration of your divorce. This is especially likely if your spouse is not a high-income earner.
Unless you agree to pay temporary spousal support in mediation, you would need to be ordered to pay this temporary support in temporary orders hearing. The support will be ongoing until a certain date specified in the temporary orders or until the Final Decree of Divorce goes into effect.
Temporary spousal support is much more fluid and flexible arrangement that is spousal maintenance. There are fewer rules to abide by and circumstances that must be in place for it to be instituted. If a judge decides in your temporary orders hearing that your spouse does not earn enough on her own to support herself and there is no money readily available to fill in those gaps then it is probable that some degree of temporary spousal support will be ordered.
Keep in mind that temporary spousal support is relatively easy to get because the money that you would be paying to your spouse in support is technically both yours and theirs equally. The divorce has not yet occurred and the two of you are still married. Therefore, the money being paid is community property.
Property division in a community property state
Texas is one of a few states that have community property laws on the books. These laws are important in a divorce because there is no preference given to the spouse who has earned more money during the course of the marriage or who has contributed more-so towards the accumulation of property or assets of other types. Whether you are a brain surgeon, a cashier or a stay at home dad, you share equally with your spouse in relation to property acquired during the course of your marriage.
When you and your spouse got married, any property that you all purchased during the course of that marriage becomes Community Property. Specifically, property that you earned (like income from your jobs), acquired (through trade or purchase), or obtained in any other way during the marriage is considered to be community property. Keep in mind that while the term community property obviously leads you to think about the property itself, these concepts apply equally to debt as well. Credit cards, home equity lines of credit, car loans and the like can all be considered community property.
Does it matter whose name appears on the loan or the title?
This is a common misconception that people have relative to the subject of community property so I wanted to address it head-on before we go any further. Folks will come into our office for a free of charge consultation and will tell me that because a loan is in their spouse's name only, or that because the house note is in their name only that their spouse owns that debt and he/she owns the house in full. Not so fast, my friend.
In actuality, it doesn’t matter whose name is on the house loan, car loan or on the title to the boat. As we just touched on, all that really matters is when. The property was acquired or the debt came into being. If you and your spouse bought a house during the course of your marriage but put only your name on the title and mortgage that doesn’t make the house any less your spouse’s. The home would be considered community property and the house note would be considered community debt.
So, this should get you thinking about all those accounts that bear only your name or your spouse’s name and how that really doesn’t matter. Just because you have a separate bank account where your income goes into doesn’t mean your spouse doesn’t have a right to that income in the event of a divorce. Likewise, your spouse’s 401(k) that contains retirement savings that were accrued 100% during the course of your marriage is technically just as much yours as it is hers.
Separate property versus community property
Since we have spent a great deal of time discussing what community property is I would also like to share with you what separate property is. Property that was acquired prior to your marriage inherited property, gifted property or pain and suffering damages in a lawsuit are all considered to be the separate property of the person who owns the said property. All other property is community property. For that matter, all property is presumed to be community property under the law. It is up to you or your spouse to rebut that presumption and prove that property is either the separate property of you or your spouse.
A judge would look to when the property came into being as well as the nature of the money that was used to purchase the property in order to determine whether the property is separate or community in nature. For example, if you purchased a house one month before you and your spouse got married then that house is separate property. It doesn’t matter if your intent was to have this be your family home as soon as your marriage took place.
Another example to consider involves you inheriting a ranch during your marriage. As we just learned, this property would be considered your separate property. However, if you and your spouse contribute money earned from your jobs for the upkeep of the property your spouse likely has a reimbursement claim to pursue if you were to later get a divorce. If your community income is used to pay the mortgage on a house that is your separate property, only the amount of money that was used to reduce the principal is reimbursable.
What about student loans?
Perhaps the most common form of debt incurred in our day and age is that of student loan debt. It is almost a given that you or your spouse have some sort of student loan debt hanging around. You may be wondering what a court would say if your spouse had student loans that were in existence from long before you got married. What would happen with these loans in your divorce?
It is important to find out how your spouse went about paying off these loans. If the loans were paid off with a gift from her aunt then that would be separate property paying off a separate debt. In the event that the loans were paid off with income earned during the course of your marriage (whether it be income from your job or hers) that means a separate debt was paid off with community property. If you divorced your spouse then she would need to reimburse the community for the funds used to pay off her student loan debt.
Commingling and divorce
If you own property that was formerly separate property but mixed it up with community property it can become difficult to distinguish separate from community property. If you got an inheritance from a relative of yours thirty years ago and put that money into a jointly held back account and then spent the money that you deposited it is difficult to make an argument that it was the separate property of yours that was spent.
How will the property be divided up by a judge in your divorce?
Now that we have discussed the ins and outs of separate versus community property, it would behoove us to figure out how a judge is likely to divide up your community property in the event that your divorce case goes to trial. This can be an extremely important question and one that has a lot of factors in play. As such, we will wait until tomorrow's blog post before tackling this issue head-on.
Questions about the material that we covered in today’s blog? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered today or need clarification on something that we wrote about please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you in order to answer any questions that you may have. We take a great deal of pride in representing people in our community just like you. Our attorneys are in the courtrooms of southeast Texas on a regular basis and are as effective at advocating for you in court as they are at negotiating settlements outside of it. Thank you for your time and consideration, and we hope to hear from you in the future.