One of the concerns that many people have as they approach a divorce is what will happen to them after the divorce has concluded. Their “post divorce” life is on a person’s mind as soon as the initial paperwork is filed. This is not surprising, given that the divorce case itself is not pleasant to think about and is not that long in duration. Your divorce will take a couple months to complete (on average) but your post-divorce life will hopefully be much, much longer. What kind of life you will be able to lead depends in large part on the decisions you make in the case and the outcomes at which you and your spouse arrive.
Many more people worry about the costs of their divorce. Hiring an attorney, taking time off from work, court fees, mediation fees, etc. The costs of a divorce can add up quickly depending on the specific facts and circumstances of your case. On top of the reality of these cases, you have probably heard horror stories about divorces from friends, family members and neighbors. These folks mean well and may even be sharing their stories with you in order to help themselves with their own coping process. That being said, it doesn’t help your anxiety to hear those stories!
Then we arrive back at your post-divorce life. What kind of life are you going to be able to lead in your post-divorce years. It doesn’t matter if you are a young person going through your divorce or if you are a young at heart person going through your divorce. We all want a quality life and peace of mind when we begin a new phase in our lives. Since you have been married for an extended period of time a lot of your life has been tied to your spouse. Getting a divorce means removing a huge part of your life (for better or worse). What that means for you and your family could be anyone’s guess.
A common scenario that plays out in many divorces…
Suppose that you are a stay at home mother and wife. You and your husband have agreed over the years that it would be best for your family that you remain at home to care for your three children. Your husband has a college degree and a ton of good work experience. He has been the breadwinner for your 18 year marriage. You’ve had your problems in the marriage but you’ve always been able to work through them with your husband. Nothing has ever escalated beyond the point where you all could talk about what is wrong and figure out a solution.
That is, until now. You’ve had a rougher patch in your marriage in recent months that you could just tell were different from other rough patches. One day you arrived home from dropping your kids off at school to find that there is a person waiting for you in your driveway. Without thinking, you park your car and approach this person. Surprisingly, he hands you some legal documents and walks towards his vehicle.
You walk into the house and open up papers to find out that you have just been served with divorce papers. Your husband is filing for divorce and you have twenty days to file an Answer to his petition. With the room spinning you sit down and reach out to a friend who can provide you with a recommendation for a family law attorney. The attorney takes your call and is willing to walk you through the basics of divorce. Once the basics have been discussed you tell the lawyer that you have concerns about one particular area: how to survive financially during the divorce and in the immediate time period after the divorce.
Basically, you want to make sure that you will be able to pay the bills, not have your home foreclosed upon and then be able to find work if that is what needs to happen for your family. With all these questions spinning around in your head the lawyer begins to walk you through the concepts of temporary spousal support, contractual alimony and spousal maintenance.
Spousal maintenance in Texas divorces
Like most people who use the word “alimony”, you’re not sure exactly what the word refers to but have a general sense that it means money paid to you by your ex-spouse after the conclusion of the divorce. After watching enough movies and television shows that detail alimony you feel like you have a pretty solid idea about what it is and how it could benefit you and your family. Could you get anything like this in the divorce, you ask the attorney?
The attorney starts off by telling you that the state of Texas has been a little slow on the draw, relatively speaking, when it comes to creating laws dealing with post-divorce financial support. Our state didn’t even have alimony or spousal maintenance until the late 1990s. The next thing that you all discuss is the word “alimony” itself. While it may just be semantics, Texas doesn’t have anything that is just called alimony. We do have payments called “spousal maintenance” which are post-divorce payments of money by one spouse to the other as ordered by a judge in a trial.
The first thing that the lawyer asks you about is the length of your marriage. He tells you that your marriage needs to have lasted for at least ten years for you to be a candidate to receive spousal maintenance. Since you and your husband have been married for 18 years you are able to clear that first hurdle. Just to provide you with a full picture on what spousal maintenance is, he tells you that the marriage does not need to have lasted for a full ten years if he has been convicted or placed on deferred adjudication for family violence in recent years. Fortunately that does not apply to your situation so you all move on to the next relevant topic.
The main issue to keep in mind, the lawyer tells you, is that judges can order spousal maintenance in a trial but they are loathe to do so. Many judges will not order spousal maintenance payments unless it is an absolute necessity to do so and all other options have been reviewed and ruled out as possibilities. For instance, the law in Texas states that spousal maintenance payments are made only when you lack sufficient property (including separate property that you entered into the marriage with) to meet your minimum reasonable needs.
What does that mean, exactly? The bottom line is that you cannot have much in the way of assets, property or other items that could be sold for money to contribute to your material well-being after the divorce. If you have a lot of property, or the division of your community estate was such that you walked out of the divorce with a ton of property it is unlikely that you will be awarded spousal maintenance in the divorce. See what I mean about judges treated spousal maintenance as a last resort?
More regarding the high bar to receive spousal maintenance in a Texas divorce
So while you are letting the above requirements to receive spousal maintenance sink in, the lawyer hits you with another wave. In addition to not being able to meet your minimal reasonable needs with the property you already have, a judge needs to find that you were unable to earn a sufficient income for yourself to provide for those needs due to a disability or the need to care for a child with a disability.
This should tell you right away that a judge is going to expect you to do everything you can to find a job for yourself before he will even consider awarding spousal maintenance in a divorce. This means, for example, that if you have a college degree that you never used it would be a good time to dust off the old diploma and get to work sending out resumes and asking your social network for leads on jobs.
If you need to go back to school for a certification, training or other course then you should make plans to do so. Since you are early in the divorce process it would make a lot of sense to ask your spouse if he could pay for the class that you need to take. If you can show the ability to go out and earn a living for yourself, even if it takes a great deal of effort, then the judge will not award you spousal maintenance.
If you are awarded spousal maintenance how long can it last?
The other thing to keep in mind about spousal maintenance, the attorney advises you, is that it likely will not last forever even if you are awarded that benefit in your divorce. If your marriage has lasted for 18 years then you would be able to receive at most five years of spousal maintenance. 20-30 year marriages are allowed at most seven years of spousal maintenance whereas 30+ year marriages would be eligible for 10 years of maintenance. It is only when you or your child has a disability that indefinite spousal maintenance can be ordered.
Based on the circumstances of your case and your specific needs, a judge will tailor a spousal maintenance order to last the minimum length of time needed in order to develop the skills, gain the experience or attain the degree that allows you to provide for yourself without the need for maintenance.
How much spousal maintenance are we talking about here?
Spousal maintenance is typically paid on a monthly basis. You could be paid up to $5,000 by your ex-spouse per month or 20% of hiss average gross monthly income- whichever figure is less. You and your ex-spouse would both submit budgets to the judge showing what your household expenditures are and then he could make a decision about what you need to sustain yourself. If all you can do is work a job where you earn $2,000 the judge could simply figure out what additional money you need to get by and then order that you receive that amount of money for five years. In that five years it would behoove you to go back to school or do something to begin to earn enough money to provide for yourself.
What factors will a judge look to when awarding spousal maintenance in a divorce trial?
When determining how much spousal maintenance to award and for how long to award it to you for, the judge has some factors that he will consider in performing his analysis. The relative difference in your and your spouse’s ability to provide for yourselves is one of those factors. Again, if your spouse is highly educated and has a great work history, while you have “only” a high school diploma and never worked outside the home, this would encourage a judge to be more liberal in his award of spousal maintenance.
The length of your marriage (as we just discussed), your ages, earning potential, your health and the contributions that you made towards your husband establishing his career will also be considered. Finally, if your spouse (or you) contributed in some way to the break up the marriage (infidelity, family violence, financial misdeeds) that is an important factor as well.
Questions about divorce? Contact the Law Office of Bryan Fagan
The experienced family law attorneys with the Law Office of Bryan Fagan are equipped to provide you with the sort of assistance, advice and advocacy that you need in this time where you are approaching a divorce. The hypothetical situation I laid out for you in today’s blog post is not a fantasy: our attorneys offer free of charge consultations six days a week here in our office. You can ask questions and receive direct feedback about your specific circumstances by simply picking up the phone and giving us a call.