In Texas, there are two kinds of post-divorce spousal support. The first is court-ordered spousal maintenance. The second is contractual alimony. The difference between the two is substantial. Contractual alimony is negotiated by you and your spouse in mediation or informal settlement negotiation. On the other hand, spousal maintenance can only be ordered by a family court judge. Given the substantial difference between the two, we must understand how either can be arrived at in how the circumstances of your case may be impacted by the law in Texas on post-divorce spousal support.
You may assume that if you and your spouse agree on contractual alimony then the statutes regarding spousal maintenance would be irrelevant. However, this is not the case at all. You need to know the laws in Texas State regarding how a judge may order spousal maintenance as part of a divorce. Knowledge of these laws will impact how you and your spouse negotiate the details of your case. It would be foolish, for example, for you to negotiate for contractual alimony based on a mistaken understanding that your spouse would be eligible for spousal maintenance if you don't agree to alimony in mediation. While there is nothing wrong with agreeing to pay contractual alimony in a circumstance where your spouse would not otherwise be eligible for maintenance this is not necessary unless you believe it to be in his or her best interests and you want to pay it.
Additionally, the state of Texas allows for contractual alimony to be negotiated upon in mediation or informal settlement negotiations. However, the state handles matters related to contractual alimony under attract law rather than the Texas family code. As such, you need to be aware that in the future if there are any issues regarding the payment of contractual alimony you will need to make sure that you are prepared to negotiate based on contract law rather than the Texas family code. There are no limitations when it comes to eligibility, duration of contractual alimony, or the amount of contractual alimony. While this may sound like a positive for you if you are trying to negotiate to be paid contractual alimony there are also no provisions for the enforcement of contractual alimony if your spouse stops paying you as agreed in your final decree of divorce.
If nothing else, if you and your spouse are on the same page as far as contractual alimony is concerned then you can at least look at the spousal maintenance provisions to get a better understanding of how you might want to structure the payment of contractual alimony. The length of the support, how the support is paid as well as other issues regarding payment can all be viewed from the lens of how spousal maintenance might otherwise be able to be paid. Miss knowledge may not be necessary for you to negotiate for contractual alimony, but it can be important and it can help negotiate a more just and equitable order for all parties involved.
Who is eligible for court-ordered spousal maintenance?
Approximately a decade ago, the Texas Legislature changed the eligibility rules for spousal maintenance. The new law states that if you are seeking the payment of spousal maintenance you must show that you are still in need of these payments even after Community property has been divided. Because Community property seeks to level the playing field in terms of how property is allocated between parties this is one of the reasons why we see special maintenance awarded typically on a limited basis by family court judges.
Also, a key point to understand in this regard is that spousal maintenance is only awarded if you can show that you cannot meet your minimum reasonable needs monthly with the property from the divorce and your income. This is in stark contrast to some people who seemed to be under the impression that spousal maintenance can be awarded to help you be able to live a lifestyle to which you have become accustomed in your marriage period rather, all spousal maintenance seeks to do is puts you in a position where you can pay your bills and have a place to live each month. A more extravagant or even preferable lifestyle that you experience in marriage is not what spousal maintenance is intended to provide you with. Bear this in mind as you negotiate for spousal maintenance. Even an award of spousal maintenance will likely be limited to duration and amount that will allow you to make your four walls and not provide you with much beyond that. Consult with one of the experienced family law attorneys with the Law Office of Bryan Fagan when it comes to determining what this may mean for you and your life moving forward.
If you can show a family court judge that you are unable to meet your minimum basic needs with the amount of support that you have available through your income and child support as well as the division of your community estate, then there are additional requirements that you must be able to show a judge that you meet to Still be awarded spousal maintenance. The bottom line is that you can be eligible to receive special maintenance but not receive it if you do not meet one of these factors.
The first factor that a family court judge would consider is that your marriage must have lasted for at least 10 years. Marriages that have lasted for fewer than 10 years typically are not eligible for an award of spousal maintenance unless family violence has occurred within the home within the past two years. Additionally, you would need to be able to show that you have made diligent efforts to earn sufficient income to provide for your minimum basic needs or that you have attempted to develop skills that would allow for you to return to the workforce after your divorce.
The other two factors that would be considered by a family court judge when deciding whether two awards or spousal maintenance in your divorce have to do with disability. First, if you are requesting spousal maintenance and have a disability that incapacitates you and does not allow you to work then that would be a factor a judge could consider when deciding to award you spousal maintenance. The other situation involving disability and spousal maintenance is about one of your children having a physical or mental disability that requires you to be able to care for him or her regularly. This regular care would not allow you to work outside the home and in earning an income sufficient to provide for yourself. Therefore, this is a factor that will be relevant when a judge considers whether to order spousal maintenance payments.
One of the questions that I receive on occasion is regarding the ability of an ex-spouse being able to reopen a divorce and ask for spousal maintenance in the future. Let's assume a situation where three years after your divorce you lose your job and are not able to pay your bills. If you walked into the Law Office of Bryan Fagan with a question regarding the reopening of your divorce to request spousal maintenance, We would tell you that you would not be able to do so. It would not matter if you either lost your job or suffered a disability. Either way, you would not be able to reopen your divorce case.
What are some helpful tips for petitioning for special maintenance?
If you believe that spousal maintenance is going to be necessary in your divorce case, then you should begin to come up with a plan to make that request to a family court judge. It is not enough to merely want to have spousal maintenance awarded to you. Rather, you need to be able to be intentional about creating a plan that allows for you to receive spousal maintenance. Your ability to do this depends in large part upon the planning that you undertake as well as the other circumstances of your case. Here are some tips that we would like to share with you about asking for spousal maintenance.
One mistake that I have seen people make regarding their divorce case and spousal maintenance is that they may decide to either quit their job or take fewer hours to artificially lower their income. The thought is that if their income looks lower during the divorce that a judge would be more likely to award them special maintenance.
Another mistake that is commonly made is if a family court judge makes it apparent to you that you will need to either return to school to complete a degree or enter the workforce to begin to earn an income, Instead, these folks will choose to either not work or complete the degree that they have been told to. This is a problem for you if you would like to seek spousal maintenance since it is a requirement in Texas that you prove that you have tried diligently to find suitable income for yourself to be awarded spousal maintenance. If a judge can see that you have not attempted to educate yourself or otherwise find employment and he or she will not be able to award you spousal maintenance. This is true even if all of the other factors in your case point toward you being in a good position to receive maintenance.
I have even heard some people tell me that they have been told that they should quit their job immediately before a divorce or even during the case to lower their income. Not only will this put you in an economic bind for the short term given that you will have no income coming into your house but you are also shooting yourself in the foot when it comes to being awarded spousal maintenance in the long term. Rather, you need to be able to show a judge that you have done the exact opposite of that. Continuing to work while showing a judge that you lack the basic income to live is the recipe for success in your case. Do not put yourself in a position where you and your opportunity to win special maintenance before you even get to the point where a judge can consider all the other factors to your case.
Another mistake that some people will make regarding spousal maintenance is that they will determine if they can hide or otherwise be shifty with how they show income 2 the judge one way or another. If you are the party who is trying to get special maintenance, then you may attempt to hide your income or otherwise miss state your ability to go out and work. On the other hand, if you are trying to avoid having to pay spousal maintenance then you may otherwise seek to give the judge the impression that you cannot pay your bills or have the wherewithal to make those special income payments.
Not only will this likely not work with the judge when it comes to spousal maintenance issues, but it will also ruin your credibility with the judge for the remaining portions of your case. Remember that your judge will have been experienced in looking at situations involving spousal maintenance and has a keen eye for detail. He or she will be aware of situations in which people have tried to lie to him or her previously. The worst thing you can do is try to lie while under oath in front of a judge. There are serious consequences for doing so. Remember that when you fill out an affidavit that is essentially the same thing as making a statement on the witness stand. Lying in an affidavit will be treated the same as lying on the witness stand.
How much special maintenance could she be ordered to pay or receive?
Let's assume that a judge has decided that you are deserving of a spousal maintenance award. Now that you know you are going to get spousal maintenance the next question would be how much spousal maintenance you should be awarded and for how long the award should go on. In most cases, the most spousal maintenance you could be ordered to receive is the difference between your monthly expenses and your monthly income. This would allow you to receive spousal maintenance equal to what you need to pay your bills and do nothing more.
However, determining the specific amount of spousal maintenance that you receive is not as simple as looking at this difference. The family court judge will need to consider additional factors related to your circumstances. One of the first factors in mind for a family court judge will be a property that you own after the divorce is all said and done. This includes any separate property that was not divided in the divorce as well as your share of the community of the state. From my experience, judges are oftentimes more willing to give you a disproportionate share of your community estate rather than to award spousal maintenance. Even if you do not have much in the way of Community property a family court judge would consider a separate property that you own. If this is your second or even third marriage, then the separate property that you own may be substantial at this point in your life.
Where the rubber hits the road is about making sure that you and your spouse are both able to pay your bills after the divorce. Remember that your spouse, no matter how you feel about him or her, still has their bills to pay period in addition, he or she may also have child support payments that they are making to you monthly. If it is clear to the judge that your spouse cannot pay you spousal maintenance on top of their bills and child support, then you will not get an award for spousal maintenance. Or the amount of special maintenance that you do receive will be limited significantly because of this factor. Even though you may not want to consider the circumstances of your spouse a family court judge will do so that can make a significant difference when it comes to the award of spousal maintenance.
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 consultations six days a week at our three Houston area locations, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.