What most of us know as "alimony" is 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 exciting 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 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 resulting from a divorce trial. These are a series of monthly payments paid from your ex-spouse to you if it is shown that you need additional monetary support to help you meet your minimum, reasonable needs. Take note that spousal maintenance would not be justified in most cases to help you maintain the lifestyle you have become accustomed to 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 to 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 only the minimum reasonable needs of the recipient need to be met. Generally speaking, spousal maintenance payments in Texas would last for anywhere between five and ten years after a 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 before 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 first need to figure out whether or not you are 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 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 and any separate property that you came into your marriage with. We can think of property as personal property and real estate, money in bank accounts, retirement savings, and other investments. The thought would be these pieces of the property could be liquidated, turned into cash, and then used to support yourself instead of spousal maintenance payments.
What do 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 can pay 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 to run your households 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 income, will be considered.
A judge will look at these elements and decide 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 to pay you spousal maintenance.
What are the other eligibility factors that you need to know before 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 cannot meet your minimum reasonable needs without assistance from your spouse. Sufficient income to meet your minimum practical 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. 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 your spouse's conviction 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 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, the exact requirements would apply if you are the primary caretaker for a child with an incapacitating physical or mental disability. 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 your wedding. The care that your child needs must be shown to be substantial and would prevent you from going 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. We need to ask ourselves the following two questions: how much money you can get and how long those payments would be made to you. As we saw earlier, this analysis is fact-specific, and the judge has multiple factors that they can consider.
I think the primary factor that a judge would consider is likely to be what you can contribute to your support and what your spouse would be able to contribute to your aid. Again, if you can earn an income but just haven't done so due to your spouse being the breadwinner, 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, you likely have a better chance of being approved for benefits.
If you have children you are receiving child support for, 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 apparent: 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 you have and whether or not your kids have any special needs would seem to be a relevant factor in this discussion.
Another factor that can be particularly important is the degree to which you contributed to your spouse's educational and professional advancement. Think about your situation if you stayed at home with the kids 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 to work full time to support your spouse so that 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, you probably did not enter into your marriage with much in the way of separate property. However, if you married later, you perhaps brought a great deal of particular property into the marriage. As we already discussed, your individual property can be utilized to meet your minimal basic needs. Utilized may mean being sold to generate income. Or, if you have a particular 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 oppressed you, 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 ten 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 an excellent 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 you will join us tomorrow. We produce original content here every day to share information with our community.