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Temporary Spousal Support, Alimony and Contractual Maintenance in Texas divorce cases

For many years, Texas was the only state in the United States that did not allow courts to order one spouse to pay the other spouse money for their support. However, as of about 25 years ago that came to an end. Spousal maintenance is what the law in Texas refers to when we are talking about spousal maintenance and support. Keep in mind that despite the fact that this law has been on the books now for a quarter century, spousal maintenance is still not easily obtained by persons going through divorce. 

For the most part, if you are interested in obtaining spousal maintenance in your divorce you would be limited to an award that would last no longer than three years after your divorce concludes. Typically you will be mixed out at a monthly payment of $2,500 or 20% of your ex-spouse’s income- whichever amount is less. These numbers can and probably should be adjusted if your spouse is wealthy and a high income earner. For the rest of us, the 20% or $2,500 numbers would likely apply across the board. 

What some people fall into thinking is that spousal maintenance is means by which a person may continue to live a certain lifestyle to which they have become accustomed during their marriage. If you were able to stay at home and not work, whether to raise children or perform some other responsibility, then your job skills and experience may not what it would have been had you gone out in the world and worked during your marriage. As a result, your income earning potential- at least temporarily- has been depressed. Spousal maintenance is intended to help you stay on your feet while you attempt to adjust to post-divorce life. 

That is the key to our understanding of this issue: if you are able to pay your bills and meet your other obligations then it will be very difficult for you to argue that you need spousal maintenance. Likewise, we will see that if you can be awarded a sufficient amount of community property which can be turned into cash then your chances at begin awarded spousal maintenance are not that great. You need to be able to meet your minimum, basic needs. If you are shown to be able to do so without the addition of spousal maintenance then you are not likely to be awarded any. 

What is maintenance?

Maintenance is a word that we have been using a lot already in this blog post, so I figure now is a good time actually put a definition on the word. Maintenance refers to an award from a divorce that involves payment of money on a monthly basis from one spouse to the other. You need to be married in order to take advantage of the laws involving maintenance in Texas. Being in a romantic relationship with another person does not cause you to become eligible for this type of income. 

What is alimony?

As opposed to maintenance, alimony is probably a term that you are more familiar with. We hear about alimony on television and in movies on a frequent basis. So, even if you do not know exactly what alimony is, you have likely heard of it and known in what context the word is utilized. 

Alimony is a contractual agreement between you and your spouse wherein one of you pledges to pay money to the other spouse for a certain period of time. We see contractual alimony used as a means of negotiating a settlement in divorce cases when one spouse needs a temporary boost in their income after the divorce. In exchange for paying alimony, your spouse may be able to negotiate more aggressively when it comes to other areas of the case. 

Now that we have defined what alimony and maintenance are, let’s take a look at how each concept could impact you and your divorce. 

Who is eligible to receive spousal maintenance?

There are limited circumstances in which you qualify to receive spousal maintenance in your divorce. The first one hopefully does not apply to your case. Namely, if your spouse was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, then you may be eligible to receive spousal maintenance. Even then, the offense must have occurred either 1) within two years before the date on which your divorce was filed or 2) while your divorce is pending. 

The more common method to become eligible for spousal maintenance to be paid in a divorce is for your marriage to have lasted 10 years or longer and to have you in a position where you are unable to find sufficient property that can be used to meet your minimal, basic needs. That includes the inability to earn an income sufficient to provide for your needs due to your being disabled or having an impairment that prevents you from working. Or, you may just lack the skills necessary to find employment that will allow for you to meet your minimal basic needs due to lack of education or a large gap in your employment history. 

Another scenario that occurs with some frequency is that you are in a position where you are the custodian of a child who was born out of your marriage and who requires a great deal of medical care and supervision due to a disabling condition. If that physical or mental disability prevents you from working in order to be able to provide sufficient care for the child then you may also be eligible for spousal maintenance. 

How does a court define minimum reasonable needs?

The next term that we need to define is minimum reasonable needs. What is reasonable to you may not be so reasonable to me, and vice versa. Therefore, the court in your case will look to your specific circumstances to define what your minimum reasonable needs are. The Texas Family Code does not have a definition for this term, actually. What the state legislature sought to do all those years ago when the law on spousal maintenance was created was to create a way for spouses to have a temporary support that helps them get on their feet after a divorce. This set-up was not intended to have you reliant on an ex-spouse for income for an extended period of time. Texas is a state that believes people should be self-sufficient if at all possible. In the event that you have a mental or physical disability, or care for a child who suffers in this way, that would be an exception that we saw previously the state considers. 

If you plan on asking for spousal maintenance in your divorce then you need to be prepared to present sufficient evidence to a judge to show that your expenses and the property available to you create a scenario where you need spousal maintenance. There is no “general” standard that a court utilizes in this situation. Since every family is different, you can expect an analysis to be performed by the judge based on your specific circumstances. 

Courts will force you as a the requesting party to present specific amounts as far as your monthly need (based on proven expenses) as well as the specific value of property available to you in the divorce. If you own separate property then it is appropriate for a judge to take into consideration these amounts as well that can go towards your support. 

How the court will view property in relation to the ability to meet your minimum reasonable needs

The language that we need to keep in mind in relation to spousal maintenance eligibility is that you need to lack sufficient property, including property distributed to you in the divorce, to provide for your minimum reasonable needs. The property that the legislature had in mind when passing this law, and what the court will be looking at in your case is any property that can be readily turned into income. 

Do your living expenses go beyond the income and property that you have available to you? Even if you will be awarded the lion’s share of your community estate in the divorce, it is likely that if you would still not be able to meet your minimum reasonable needs that spousal maintenance would become available to you so long as you and your spouse have been married for at least ten years. 

When and how do you need to ask the court to award you spousal maintenance?

If you do not ask, the answer is always no. This is a lesson you may learned from your mom or dad. It basically boils down to: unless you ask for something, you have no chance of getting it. This applies to spousal maintenance and your divorce, as well. However, you need to know how to ask and when to ask for your request to fall upon receptive ears. 

Unless you suffer from an incapacitating physical or mental disability, it will be presumed by the court that maintenance is inappropriate in your situation. You can rebut this presumption by presenting evidence to the court that you have done everything possible (exercised due diligence) to become capable of supporting yourself while you and your spouse have been going through your divorce. 

It is crucial that you be able to show a judge that you have gone through some effort to locate employment that would cause you to become self-sufficient as far as being able to meet your minimum reasonable needs. In the alternative, you need to show the judge that you have undertaken whatever steps are necessary to gain an education or the skills necessary to find employment. On a practical level, this can mean proof of your having applied for jobs or applications to attend higher education or vocational training courses. Your resume, job applications, school schedules and the dates by which you expect to complete any coursework would be a good start to this process. 

How should you prepare to present a claim for spousal maintenance to a judge?

You and your attorney will need to get information together that can accurately tell the judge in your case about the relative health, financial resources, education, skills and work history of you and your spouse. Additionally, you will want to spell out the roles that you and your spouse played in your marriage. Were you the spouse who sacrificed your career to care for your children and the family home? Did your spouse go out into the world and obtain a college degree and a high-paying job in part due to your willingness to support him at home? 

As we have already gone through, you will need to be able to show the judge that you do not have the ability to earn an income sufficient to provide for your minimum reasonable needs. It would make a ton of sense for you to go through a detailed list of what your minimum reasonable needs are on a monthly basis. This way the judge can see just how much more income you need on a monthly basis in order to meet your needs. 

Keep in mind that this analysis does not relate at all to a situation where you suffer from a mental or physical disability that prevents you from working. Additionally, if you are the primary caretaker for a child who suffers from a mental or physical disability then you would likely not be able to work outside the home as a result. In these situations proof of the continued nature of those disabilities would be more helpful to a court. 

More information to be posted tomorrow regarding maintenance and alimony

If you found today’s blog post helpful and interesting, then I invite you to return to our blog tomorrow. We will be posting more about this topic in the days to come. If you have any questions about the material that we shared today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer and address your questions. 

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