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Who is entitled to spousal support?

Spousal support is a term that is used to describe multiple components of a general theme in Texas divorce law. That is, a spouse can either agree to or be ordered to pay their spouse a certain sum of money on a regular basis both during and after the divorce in support of the receiving spouse’s well-being. These payments of money are called temporary spousal support, contractual alimony and spousal maintenance based on when the payment is made and how the spouse is made to make the payment. 

You and I hear about alimony far more often than the other two methods of spousal support that I listed above. It is typical for movies, television, the news, etc. to call every kind of spousal support as alimony. I can’t speak for other states, but this can be confusing for us Texans who have multiple types of spousal support that can impact persons going through divorce. Ultimately a need would have to be established for you to either be paid or pay spousal support in any of its forms as a result of a divorce case. 

One of the nice things about the laws on spousal support in Texas is that the Texas Family Code is pretty clear on the requirements to receive spousal support as well as the factors that a judge should look to when assessing whether to order spousal maintenance be paid as a result of a divorce trial. It has not been all that long, relatively speaking, since the times where spousal maintenance was not something that a court could order in a divorce case. Even now, courts are typically unwilling to order spousal maintenance be paid unless you find yourself in circumstances where the failure to award spousal maintenance would put one spouse at risk not being able to provide even a basic living for him or herself. 

As a result of the requirements and factors being outlined fairly well in the Texas Family Code, you will want to make sure that you understand your case and how it fits within these requirements and factors. You may believe in your heart of hearts that you are in need of spousal support, but the law and therefore the judge may feel differently. If your material well-being depends on your understanding of this issue then stick around and read through today’s blog post very carefully. 

In today’s blog post from the Law Office of Bryan Fagan we will discuss this topic in detail so that you can understand the ins and outs of the spousal support world in a Texas divorce. I’ve found that many times clients’ expectations regarding spousal support can different significantly with the reality of actually being awarded spousal support. I’d like to put forth some effort today to make sure that you have an opportunity to learn about this process before actually becoming involved in your own divorce case.

What exactly is temporary spousal support?

We have already mentioned that alimony is a general term that is used to refer to either spousal support (temporary), spousal maintenance or contractual alimony. Texas utilizes these three forms of spousal support depending upon the status and stage of your case. 

Temporary spousal support is, you guessed it, temporary in nature. While you are going through a divorce you may be able to receive temporary payments of money from your spouse in order to ensure that your minimum, reasonable needs are met. Imagine a scenario where your spouse moves out of the house and leaves you and the kids to fend for yourself more or less. This is where you may worry about paying the mortgage, your bills, tuition for your kids’ schools, etc. Temporary spousal support is likely to be ordered if you are not working, need time to find employment and have a wide gap in income potential between you and your spouse. 

Many people underestimate how difficult it can be for themselves or their spouses to get back on their feet during a divorce and provide for him or herself. Many times when a spouse has not been working for years and years due to their staying at home and raising a family it can be a challenge to ease back into the workforce. In some cases you may have given up a chance to develop your own professional career in order to stay at home and raise kids while your spouse earned an advanced degree and developed a great deal of professional experience. 

So, in order to make it possible for a household to be maintained during the divorce temporary spousal support may have to be ordered. You and your spouse may agree in mediation to some amount of spousal support to be ordered. In the alternative, a judge may order temporary spousal support in a temporary orders hearing. If you need to go through to a hearing, it is important that you be able to present an accurate budget for your household expenses and income to the judge. From that, a judge can determine on a pure dollars and cents level whether you are in need of temporary spousal support.

Spousal maintenance and contractual alimony

Spousal maintenance and contractual alimony are forms of spousal support that can go into effect after a divorce has concluded. The main difference between the two is how they come about. Spousal maintenance would be ordered by a judge as a result of a divorce trial. Contractual alimony is more or less a contract, an agreement made between you and your spouse where money would be paid by one of you to the other after the divorce. 

When do you see contractual alimony or spousal maintenance ordered in a divorce? I think the typical situation would involve a divorce where you have a relatively low income (or none at all due to being out of the workforce) and your spouse has a relatively high income. Since you have put your own ambitions and professional aspirations aside in order to maintain a home and/or raise a family you are likely in a disadvantageous position as far as being able to provide for yourself without the financial assistance of your spouse. 

For these reasons, your spouse may agree to pay you a certain sum of money monthly for a certain period of time in order to help you fill the gaps in your budget. This is contractual alimony. On the other hand, your spouse may be ordered to pay you support as a result of a trial for the same reason. This is spousal maintenance. Keep in mind that these are likely not going to be lifetime payments or anything close to it. Nor are they payments that are expected to keep you in the lifestyle to which you have been accustomed to. 

How can you become eligible to receive spousal maintenance or contractual alimony?

In many cases, you may be able to negotiate for contractual alimony through outright need or in exchange for allowing your spouse to retain a particular part of your community estate. For example, rather than dividing up your spouse’s retirement account you may agree to receive alimony payments for a certain length of time through the initial years of your post-divorce life. Of course, a decision like this would need to be made in consideration of your specific circumstances after consulting with your attorney.

Spousal maintenance depends first of all on you and your spouse being married for at least ten years. Unless you are the victim of domestic violence, are to be the primary caretaker for a disabled child or are disabled yourself this ten year requirement is very important to keep in mind. An inability to meet your minimum, reasonable needs must be shown as well. This factor encompasses issues like your education, work history, ability to find and maintain employment as well as the availability of separate or community property that could be awarded to you instead of spousal maintenance. 

Depending on the length of your marriage, the length of your spousal maintenance award can vary. For instance, if you and your spouse were married between 10-19 years prior to your divorce you would be able to be ordered at most five years of spousal maintenance. A marriage of between 20-29 years would enable you to receive at most seven years of spousal maintenance. Finally, a marriage that has lasted 30 or more years would allow an award of spousal maintenance that lasts for up to ten years in duration. 

The final piece of this puzzle that you are probably curious about is how much money would you be in line for payment if you were awarded spousal maintenance. Your spouse’s average gross monthly income would first need to be calculated. Once that figured is arrived at then a judge would figure out what number is smaller: 20% of their gross monthly income or $2,500. Whichever number is smaller, that is the figure that you would be eligible to be paid in spousal maintenance. 

Factors that a court would consider when ordered spousal maintenance?

Keep in mind that when I am about to tell you what factors a court would consider when awarding spousal maintenance, the same factors apply when negotiating contractual alimony with your spouse. Both of you will be (or should be) aware of these factors during negotiations. Keeping them in mind will allow you to understand what a judge is likely to order in a trial if your negotiations do not result in a settlement regarding the issue of spousal support. 

A family court judge is given a great amount of discretion to make decisions and utilize their personal judgment when deciding divorce cases. However, the Texas Family Code does lay out some factors that a family court judge should consider when determining whether an award of spousal maintenance is justified. 

Basic living expenses that can be taken out from separate or community property will be considered as most important. Meaning- if you have sufficient property to sell or otherwise liquidate in order to eliminate the need for spousal maintenance then it will not be awarded to you. Judges will not bend over backwards to award spousal maintenance, in other words. 

The income level of your spouse will be compared to your own income level- or lack thereof. What does your household budget look like. If you can cover your bills with the income you are starting to generate from a new job or have property you can easily sell to get you on your feet after a divorce then your ability to win a spousal maintenance award are quite low. In these circumstances you may be better off trying your best to negotiate a contractual alimony payment from mediation

If you have a college degree, vocational training or any other type of job experience that would allow you to land a job to meet your basic needs then this is a factor that would go against your ability to be awarded spousal maintenance in the divorce. Not everyone in your position has the ability to seamlessly slide into a new work role, however. Based on your life experiences you may have been in the home more than you were in the classroom of workplace. Spousal maintenance is intended to bridge the gap so that you can go out and finish your degree or gain the experience needed to provide for yourself.

You or your spouse’s fault in the breakup of the marriage will also be considered. For example, if your husband cheated on you and caused other harm to your family which led to your filing for divorce then that would likely be seen as a way for you to be awarded spousal maintenance easier. Inversely, if you contributed to the breakup of the marriage and are now attempting to be awarded spousal maintenance it is unlikely that you would be successful in doing so.

Finally, if you are the day to day caretaker for a child who has a disability or you have a disability that prevents you from working then you are more likely to be awarded spousal maintenance. Under these circumstances you can also be awarded spousal maintenance on an indefinite basis, as well.

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

If you have any questions about the material that we shared with you 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 for you to learn more about the law, our law office and any other subjects you are interested in. Our attorneys will also provide you direct feedback about you and your case.  


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