One of the more interesting topics within Texas family law is that of post-divorce spousal support. I think it is one that draws a great deal of attention from people due to movies and television shows frequently discussing it. I can't imagine that many of us know people who are receiving spousal maintenance or contractual alimony due to it being fairly rare to be awarded in a trial after a divorce. Most spouses do not have the financial wherewithal to afford to pay in ex-spouse spousal support of this kind. As the old saying goes: you can't get blood out of a turnip. A judge can't order your spouse to pay you money that he or she does not have.
That doesn't stop many people from discussing it in their divorce planning stages. The attorneys with our office offer free-of-charge consultations to potential clients who are interested in learning more about their circumstances and Texas family law. In these consultations, we often hear questions about spousal support and whether or not it would be likely that their spouse would be able to pay the money after the divorce for various reasons. A lot of times those reasons have to do with actual financial need in other times those reasons relate to payback for causing the divorce.
The way that spousal support works in Texas once a divorce is complete is that the support itself acts as additional money that is paid by you to your ex-spouse or vice versa. These sums of money do not come out of your community estate and are treated as a separate portion of the case. Likewise, if you have children and are also ordered to pay spousal support the spousal support will not come out of child support and is treated as an entirely different subject. These payments will be temporary he will come out of your income to pay your ex-spouse.
Spousal support can also be paid to your spouse during the actual divorce and is referred to then as temporary spousal support. For many people, spousal support acts as the main way that they can pay their bills and keep their heads financially above water until they can go back to school or get a job outright. Keep in mind that just because a divorce has been filed does not mean that financial responsibilities or bills go away. If you move out of the house during your divorce your mortgage will still need to be paid as well as the home maintained. Temporary spousal support may be a vehicle through which these financial obligations can be met.
However, whether or not your ex-spouse can receive spousal maintenance or contractual alimony from you is more than just a situational or legal question. This is where the emotions and the baggage of marriage come into play when discussing topics related to the relationship. Your ex-spouse may request spousal support after the divorce when he or she does not make as much money as you, lacks your level of education, or has not been working for some time due to their being responsible for raising your children. In this era of the pandemic, your ex-spouse may not be that excited by entering a workforce that may not be as strong as it will be in a year or two.
These are all reasons why your ex-spouse may theoretically push hard for spousal support after the divorce. Keep in mind that if your ex-spouse had sacrificed in some way for you to achieve educational or professional success and he or she may believe that it is their time to get what is coming to them in the form of post-divorce spousal support. This is a challenge for you as you are thinking about the possibility of having to support your ex-spouse in addition to paying child support and in addition to having your Community property divided in a way that may not be satisfactory to you. for this reason comma, you need to get your ducks in a row as far as protecting yourself from the future threat of spousal maintenance or contractual alimony.
What I would recommend you do is to begin thinking about this subject in terms of what you can do now to benefit yourself and your children moving forward. It is not worthwhile for you to constantly think about what could have been done differently or what changes could have been made in your life previously to avoid a situation where you may be forced to pay spousal maintenance or contractual alimony. Odds are the decisions you made in the past were made with your spouse to benefit your family at that time. Circumstances change in families do as well. You could not have anticipated exactly what was going to happen in the future but made decisions based on the information available to you at the time.
An explanation of the two types of post Divorce spousal support
in Texas, there are two types of post-divorce spousal support: contractual alimony and spousal maintenance. We have already talked about these two concepts generally in today's blog post but I would like to take some time to talk with you about what they are and what they represent on a real-world level. There are major differences between the two of them including how you can get them, how long they can be paid for, and how much they can be paid for. Even getting a court to enforce an order in the future can change depending on what type of award you are ordered to receive or pay.
A court will order spousal maintenance to be paid as the result of a trial. With that said, the odds are good that the ordered payments will be against your will and that you will be told to Pay spousal maintenance as a result of a contested trial. On the other hand, contractual alimony is spousal support that you and your spouse would agree to pay in mediation or informal settlement negotiations. Odds are that once you get to the mediation stage of your case you will want to know what you could be in line to pay as far as contractual alimony versus what you may be ordered to pay in spousal maintenance.
Court-ordered special maintenance is limited both in duration and amount in Texas. Texas family law allows for a judge to order special maintenance only in certain circumstances. Keep in mind that Texas is a Community property state where all Community property assets and debts will be divided between you and your spouse. A court will seek to do so in what is called a just and right manner or you and your spouse can agree in mediation to divide up the property in whichever way you feel is appropriate. The financial division of your Community property in your divorce is typically close to being 50/50. Salary and wages from jobs and other income that counts as Community property will be split up as well and not necessarily awarded to the spouse who earns it. In this way, the breadwinner of the family from a financial perspective typically does not end up with a lion's share of the community estate.
For this reason, spousal maintenance is typically awarded only in cases where one spouse requires it. This shouldn't surprise anyone. Historically, Texans are pulled up by the bootstraps, hardworking people two don't necessarily smile app handouts whether it be from the government or an ex-spouse. The idea is that the court ordered special maintenance can offer a spouse in need time to be able to get their feet underneath them after a difficult divorce. The counter-argument to this is that an award of special maintenance that is too significant may create a situation where that spouse does not feel incentivized to go back to work.
This is the basis of why convincing a family court judge to have special maintenance paid in your case can be quite difficult. Judges understand that the community estate typically is split more equitably than in other places and as a result, the at need spouse may not be as needy as he or she may believe. This instinct in many courts judges his balance against the need of many spouses to have some degree of help to find work, gain an education, or simply get on their feet after the divorce. This is especially true in circumstances where you may have been abused during the marriage.
Contractual alimony involves you attempting to reach an agreement with your spouse during the mediation or negotiation process of your divorce. You must be aware that the law in Texas allows that for your spouse to be declared eligible to receive court order and special maintenance that there is no agreement for contractual alimony in place from mediation or settlement negotiations. Another thing to keep in mind is that because Texas treats contractual alimony as a contract it is not able to control the amount or duration of how long the alimony is paid. This is critical for future enforcement reasons and also any attempt by you to limit or stop the payment of alimony based on future circumstances.
Laws on special maintenance have changed
10 years ago the state of Texas changed the eligibility rules for court-ordered spousal maintenance. Based on the laws that were changed at that time your spouse must first be able to show that after the divorce and the division of your Community property that there will not be enough property in place to meet his or her minimum reasonable expenses. Translated into English this means that your spouse will need to show that he or she cannot meet their monthly bills with their income and their portion of the community estate paid out.
If your spouse can prove this to a judge, then your spouse must also prove that one of the following conditions is in place:
#1 period that you committed family violence against him or her
#2 that he or she is disabled and that disability came about during your marriage
#3 that your marriage has lasted for at least 10 years and that your spouse made every effort possible to either earn sufficient income or to develop the skills necessary to do so while the divorce was going on to meet their minimum basic needs
#4 that a child of your marriage has a physical or mental disability that prevents your spouse from working due to the need to care for your child around the Clock
What can you do to increase your chances of getting approved for spousal maintenance in a Texas divorce?
So far in today's blog, we've been talking about spousal maintenance from the perspective of the spouse who may be at risk of having to pay spousal maintenance after a divorce. Now, I would like to change the discussion right as if you were the spouse trying to have special maintenance paid to you. As you could probably already tell, it is not easy to put yourself in a situation where spousal maintenance will be paid to you. As a result, you will need to keep your focus and set yourself up for success by following the following steps.
First of all, you should not reduce the amount that you are working or outright refused to look for work or education while your divorce is pending. One of the keys to being awarded special maintenance by a judge is to show that you were married to your spouse for at least 10 years and that you went through the effort to try and educate yourself or obtain employment during your divorce. The employment does not have to be the job of your dreams but has to be something that could support you on a minimal basis. This may mean that you had to attend job seminars or complete a degree that was halfway done years ago. A judge will see through a plan to purposefully keep yourself under or unemployed so do not fall into that trap.
This is something that I cannot emphasize enough to you. Family court judges have seen your circumstances before even if he believed them to be unique to you and your spouse. While history may not repeat itself it certainly does rhyme. This means that while no two people may be able to completely mirror your circumstances with your spouse there are certainly similar circumstances involving other married people that have gone before that judge previously. Do not try to overstate your own need for spousal maintenance. A judge will see through your act and you will lose credibility with him.
If a judge does believe that you are eligible to receive spousal maintenance then the next question is how much special maintenance will you be ordered to receive and for how long will you be ordered to receive it. In most circumstances, your monthly expenses subtracted by your monthly income would result in the greatest amount of spousal maintenance that you could receive. However, that does not always tell an entire story as far as how much special maintenance you may need. Several different factors can be considered by a judge such as you and your spouse is financial resources after the divorce, misconduct that played a role in the divorce, family violence, your and your spouse's education and employment skills as well as sacrifices made during the marriage to benefit the other person.
These are all factors that will be considered by your family court judge in determining how much, if any special maintenance you may receive. There is a cap on court-ordered special maintenance that is set by statute. This cap will be set at $5000 per month or 20% of your spouse's average monthly gross income. Whichever number is lower will be the cap in your case. Gross income is determined by considering all wages and salaries earned by your spouse, interest in dividends on investments, self-employment income, pension income, unemployment benefits as well as rental income.
A court will order spousal maintenance to be paid for the shortest period possible that will allow you to get back on your feet and to be able to earn enough money to meet your monthly expenses. An exception to this general rule is if you are suffering from a mental or physical disability or are caring for a child that suffers as such. If there is a need for an indefinite award is muscle maintenance then you must typically be reviewed periodically by the court after your divorce to determine if the spousal maintenance is no longer necessary.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great opportunity for you to learn more about your circumstances as well as about the services offered to our clients by our attorneys and staff.