What most of us know as “alimony” is actually not available in Texas. Movies and television shows talk about alimony in the context of highly contentious divorces between rich spouses. This can make for interesting circumstances for entertainment purposes but the reality of situations like this is that most people who go through divorce are not wealthy. Most divorces in Texas do not result in spousal maintenance or contractual alimony being paid from spouse to spouse. With so much misinformation floating around in the atmosphere about spousal maintenance I wanted to take some time and discuss with you just what spousal maintenance actually is.
Spousal maintenance in Texas is what people elsewhere in the country refer to as alimony. A family court judge can order spousal maintenance as a form of spousal support as a result of a divorce trial. These are basically a series of monthly payments that are paid from your ex-spouse to you if it is shown that you are in need of additional monetary support to help you meet your minimum, reasonable needs. Take note that spousal maintenance would not be justified in most cases simply to help you maintain the lifestyle to which you have become accustomed during your married life.
These payments will not last forever in most cases. If you are on the other side of this equation and are concerned that you could be ordered to pay your ex-spouse spousal maintenance, then you should take solace in this reality. Spousal maintenance is temporary support and is limited as far as how much you could be ordered to pay. The key phrase that you need to become aware of, no matter if you will be paying or receiving payments, is that it is only the minimum reasonable needs of the recipient that need to be met. Generally speaking spousal maintenance payments in Texas would last for anywhere between five and ten years after divorce.
Changes in spousal maintenance due to recent tax law updates
The most recent tax bill that went through Congress in 2017/2018 will see changes to how you would either pay or receive spousal maintenance through a court order. There had previously been a tax break in place for those folks who went through divorces that were finalized prior to December 31, 2018. Spousal maintenance or contractual alimony payments were deductible for the spouse who had to pay them. The new tax law put an end to that deduction possibility, however.
Are you eligible to receive spousal maintenance payments?
Before you concern yourself with spousal maintenance payments you need to first figure out whether or not you are even eligible to receive payments. Your attorney can petition (ask) the judge to consider awarding you spousal maintenance benefits. Eligibility for spousal maintenance payments hinges on your ability to show a judge that you were married to your spouse and not merely cohabitating with one another. Next, you would need to present evidence to a court that you lack sufficient property to provide for your minimum reasonable needs. Let’s take a break to discuss that requirement.
Property means any property that you were awarded out of your community estate as well as any separate property that you came into your marriage with. We can think of property not only as personal property but also real estate, money in bank accounts, retirement savings and other investments. The thought would be these pieces of property could be liquidated, turned into cash and then used to support yourself in lieu of spousal maintenance payments.
What does minimum basic needs mean?
What is a minimum basic need to you may not be a minimum basic need to me, and vice versa. As with a lot in the world of family law, this is a largely fact specific discussion that depends on you, your spouse and your financial circumstances. You and your spouse will both submit budgets to your judge in a trial. From that, the judge can determine what your spouse is capable of paying in spousal maintenance (if anything) and what you need (in terms of dollars) to meet your minimum basic needs.
Think about what expenses you have in order to run your household like your rent, utility bills, groceries, car insurance, debt payments and things of that nature. Note that these are not extravagant expenditures or anything like that. You can expand expenses to cover things like credit card payments, medical bills, clothes, childcare and costs associated with transportation, as well. Your ex-spouse’s monthly income as well as your own income will be considered.
A judge will look at these elements and make a decision about whether or not your ex-spouse’s projected income will allow for any degree of spousal maintenance to be paid, at all. Even if you are justified in your request for spousal maintenance it may be that your spouse does not have any wiggle room in their budget to allow for any payments to be made. Your spouse cannot be made to incur debt, break open their retirement or do anything else to harm their long term future in order to pay you spousal maintenance.
What are the other eligibility factors that you need to know prior to asking for spousal maintenance?
Let’s get this one out of the way right off the bat: you and your spouse need to have been married for at least ten years for you to be eligible for spousal maintenance or contractual alimony. In addition, you must present evidence to the judge that you are unable to meet your minimum reasonable needs without assistance from your spouse. Sufficient income to meet your minimum reasonable needs means that you need to have made an effort to get a job, finish a degree or do whatever else it would take to be self-supporting in this way.
One of the unfortunate parts of divorce cases is how often family violence plays a role in the case. You may be eligible based solely on the occurrence of family violence against you. The violent act must have been committed during your marriage and be within two years of the divorce having been filed. Finally, the act of family violence must have resulted in the conviction of your spouse or resulted in deferred adjudication.
Next, you or your child could be disabled and that may result in your being eligible to receive spousal maintenance in and of itself. The physical or mental disability must be incapacitating and prevent you from working. Establishing a disability may require the admittance of medical records into the record and/or the testimony of a medical expert witness or vocational expert to testify to your inability to work in the national or regional economies.
Likewise, if you are the primary caretaker for a child who has an incapacitating physical or mental disability then the same sort of requirements would apply. Your child could be any age and still count in your favor, even if the child is now over the age of 18. The child must have been born out of that marriage or been adopted by you and your spouse during the course of your marriage. The care that your child needs must be shown to be substantial and would prevent you from being able to go out into the economy to earn an income for yourself.
How will a judge calculate how much spousal maintenance you are eligible to receive?
Let’s assume for a moment that a judge approves you to receive spousal maintenance from your ex-spouse after the conclusion of your divorce. The next two questions that we need to ask ourselves are: how much money you can get and for how long those payments would be made to you. As we saw earlier, this analysis is fact specific as well and the judge has multiple factors that he or she can consider.
I think the primary factor that a judge would consider is likely to be what you can contribute to your own support as well as what your spouse would be able to contribute to your support. Again, if you have the ability to earn an income but just haven’t done so due your spouse being the breadwinner then you may be able to jump right back into the workforce without much of a transition period. Likewise, if your ex-spouse has a good income and a proven track record of earning income at high levels then you likely have a better chance at being approved for benefits.
If you have children that you are receiving child support for then that will contribute to the judge’s analysis of whether or not you need spousal maintenance to be paid. The reason for this should be pretty obvious: if you are already receiving support for your children then you would theoretically need less in the way of spousal maintenance in that case. The number of children that you have and whether or not your kids have any special needs would seem to be a relevant factor in this discussion as well.
Another factor that can be particularly important is the degree to which you contributed to the educational and professional advancement of your spouse. Think about your situation if you stayed at home with the kids in order to allow your spouse to go to law school and eventually land a job at a big time law firm here in Houston. Or, maybe you stopped going to college in order to work full time to support your spouse so he could get through medical school. The degree to which you sacrificed in this area can impact how much spousal maintenance you are awarded, if any.
If you married when you were young, then you probably did not enter into your marriage with much in the way of separate property. However, if you married at a later time then you perhaps brought a great deal of separate property into the marriage. As we already discussed, your separate property can be utilized in order to meet your minimal basic needs. Utilized may mean being sold to generate income. Or, if you have a separate property home that you could move into and not have to pay rent, for example, this could heavily influence a judge’s decision on whether or not to award spousal maintenance payments.
The judge will also consider the role that each of you (if any) played in the breakup of the marriage. For instance, if your spouse had engaged in financial acts like fraud which directly led to your divorce then that is a factor in your favor as far as being awarded spousal maintenance. Additionally, if your spouse committed acts of infidelity or treated you cruelly then you may have a stronger case as far as applying for spousal maintenance.
How long does spousal maintenance last in Texas?
This is the final piece of the spousal maintenance puzzle that we need to put together today. For starters, if you or your child have a disability the kind that we discussed earlier today then you would be able to be paid spousal maintenance for as long as you are eligible. Otherwise, spousal maintenance payments would last for five years if your marriage lasted 10-19 years, seven years if your marriage lasted between 20-29 years and 10 years if your marriage lasted thirty years or longer.
Questions about spousal maintenance in a Texas divorce? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered 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 here in our office. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances. We appreciate the chance to share information with you here on our blog and hope that you will join us tomorrow. We produce original content here every day in order to share information with our community.