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How is alimony decided?

Besides issues relating to your children, financial questions are probably the most frequently asked of family law attorneys. I can tell you that from my experiences working for the Law Office of Bryan Fagan people are concerned primarily with their children in a divorce but right after that are concerns with money and personal finances. Not only are you putting at risk your immediate financial future due to the increased costs associated with divorce, but there are long term financial consequences related to divorce that also need to be considered. If you are unaware of where to start your analysis of divorce, this is a good place to start. 

Let’s establish that when we are talking about money, finances and property we need to frame everything within the confines of Texas being a community property state. Community property refers to how the state will treat property at the time of your divorce from your spouse. Community property also means two things: that all property that exists at the time of your divorce will be presumed to be part of your community estate and that all community property must be divided between you and your spouse once you get divorced.

The community property presumption

Community property means that both you and your spouse own the property in full. That does not mean that you own 50% of the couch and your spouse owns 50% of the couch. Rather, you both own 100% of that couch if the couch was purchased with community property income during the course of your marriage. Both of you could make arguments as to why the couch needs to be divided up in your favor at the time of your divorce. 

Most of the time you and your spouse will not need to take your arguments to a judge to see who gets to keep that couch. Rather, you and your spouse will both have an opportunity to negotiate a settlement to your divorce before you ever have to speak to a judge. Much of the negotiation that goes on will concern your community estate. Who gets what and in what proportion are the big picture questions that will need to be answered. 

Any property that you or your spouse owned prior to your marriage will be classified as separate property. Separate property is not divisible in the divorce. So, if you bought a car, boat, piece of furniture of real estate before the marriage it cannot be divided up by the judge in your divorce. Also, if you were gifted property during the divorce or inherited property during the divorce it is likely that this property would be classified as your separate property as well. 

Otherwise, most of the property at issue in your divorce will be classified as community property and is subject to division. Depending on how this community property is divided in the divorce you may be faced with a situation where you need additional resources to help yourself recover from the divorce and get back on your feet again from a financial perspective. That is where spousal support, contractual alimony and spousal maintenance can come into focus. 

How does spousal maintenance work in Texas?

I’m going to assume that most everyone reading this blog post has heard of the term “alimony.” It could have been in a newspaper article, internet forum, television report or just friends or family that you have come into contact with this term before. It’s pretty well known that as a result of divorce one spouse could be ordered by a judge to pay their ex-spouse money after the divorce has concluded. 

The reality, in Texas at least, is that alimony is not something that can be ordered by a judge to be paid. When we think about alimony in Texas, what we are more than likely referring to is something called temporary spousal support, contractual alimony or spousal maintenance. These are payments of money from your spouse to you during the course of your divorce or after your divorce. These payments are intended to help you provide for your minimal, basic needs if you lack the resources or ability to do so for yourself. 

Let’s take some time and walk through each of these types of spousal support so that you can understand what each is and which one is most relevant to your particular situation. 

Alimony examined

Alimony can refer to a number of different types of spousal support. The first would be temporary spousal support payments that you receive during the course of your divorce. You would able to receive spousal support payments on a temporary basis during the divorce to pay for necessary and reasonable expenses that are a part of your life. This can be a hard time for many people given that your spouse may have moved out and left you to fend for yourself and your kids without their direct assistance. If you have been a stay at home parent it can be especially hard to worry about how the bills will be paid now that you are having to go out and find work for the first time in years. 

There is another form of alimony known as contractual alimony which you should also be aware of. Contractual alimony refers to an agreement made in settlement negotiations between you and your spouse where he or she would agree to pay you a certain amount of money on a monthly basis over a certain amount of time to help you meet your minimal, basic needs. You all are allowed more flexibility as to how much money is to be paid, how often the money is to be paid and for how long the payments would occur. 

The final type of alimony is known as spousal maintenance. Similar to contractual alimony, spousal maintenance allows for the payment of money by your ex-spouse to you but is ordered by the court rather than agreed to in settlement negotiations. 

Spousal maintenance examined

The future income of your spouse will be utilized to pay you support as a result of your divorce if spousal maintenance is ordered by the judge. Keep in mind that you need to have been married to the person that you were living with in order to be eligible for spousal maintenance. Commonly referred to as “palimony”, you cannot receive payments from an ex-boyfriend or girlfriend ordered by a court in the event that you break up- even if you have had a child together. Spousal maintenance is only temporary and is only intended to help you meet your minimal needs after the conclusion of your divorce. 

Are you in a position to be paid spousal maintenance?

Lacking sufficient property to meet your minimal basic needs is the hallmark for eligibility to receive spousal maintenance payments. This means that you must not have receive sufficient community property out of the divorce or have any separate property that can be liquidated to help you pay bills and find a place to live. On top of that, you must not have an education or job skills that would allow you to easily transition into a job in your post-marital years. 

The exception to these rules is that if you have a disability or care for a child who has a disability you may be able to be awarded spousal maintenance without showing any of the above factors applying to you and your circumstances. Overall, it is presumed by a judge that you will be able to meet your minimal basic needs without the assistance of spousal maintenance payments. 

If you show that you have done everything you can to find suitable work or done what you can to develop skills that would more readily allow you to do so then you would be on the right track to be awarded spousal maintenance. Start to document all the places you have sent your resume into, instances of job interviews taken, etc. if you want to have sufficient evidence to submit to a judge as to why you are in need of spousal maintenance. 

How does the judge determine how much spousal maintenance to award to you?

Once you are found to be eligible to receive an award of spousal maintenance and the judge has actually determined that you have a need for these payments, the next question that we need to answer is how he will determine the proper level of support to award you. Your financial circumstances as well as those of your spouse will be considered. If he earns a high salary and has a solid basis of personal wealth then this is a positive factor as far as you are concerned. 

Your relative work backgrounds, educational levels, length of your marriage, your ages, your health, the amount of child support that you are being paid, as well as you own ability to provide for your basic needs will all be considered. Finally, if your spouse’s conduct played a significant role in the breakup of your marriage then that is a factor that will be considered as important, as well. 

How long can you expect to be paid spousal maintenance?

Spousal maintenance is a temporary thing. Judges have only had the ability to order that spousal maintenance be paid for about 25 years, and in that time the courts have been hesitant to do so. For example, unless you or your child are disabled you will not be able to be awarded spousal maintenance payments that last longer than 10 years. In that case, however, you can receive spousal maintenance for an indefinite length of time. 

The next important factor to consider is how long did your marriage last? The law in Texas is that there are limits to how long spousal maintenance payments can be ordered for. If your marriage lasted at least ten yeas then you can get up to five years of spousal maintenance payments. For marriages that lasted 20-30 years then you can get seven years of spousal maintenance payments. For marriages that lasted 30 years or longer than you would be eligible to receive payments of spousal maintenance for up to ten years. 

These spousal maintenance payments that were ordered can be terminated in certain circumstances. First, if either you or your spouse were to die during the middle of a spousal maintenance order then the order would terminate. Importantly, if you begin to cohabitate with a person with whom you are having a romantic relationship then the order could also terminate upon request by your ex-spouse. As far as limits to what can be paid in spousal maintenance, the maximum award would be $5000 or 20% of your ex-spouse’s monthly income. 

Closing thoughts on spousal maintenance and support

Being in a position where you need to ask for spousal maintenance or even temporary spousal support can make you feel a little helpless. The path that your divorce takes will be dictated by the length of your marriage, your earnings capability and by many other factors. We have discussed many of these factors today but the bottom line is when you need income it is best that you have a professional in your corner to help you negotiate and advocate for your rights. You have taken the first step towards effectively doing either of those things- learning about the law regarding spousal maintenance.

Questions about spousal maintenance and divorce? Contact the Law Office of Bryan Fagan

The next step to take when it comes to questions you may have about spousal maintenance and divorce would be to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity for you to learn more about our office and to receive direct feedback from one of our attorneys about your specific circumstances. We are honored to serve our community in the family courts of southeast Texas and look forward to the opportunity to do the same for you and your family. 

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