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What impact did the legislative changes of 2021 have on spousal maintenance in Texas?

One of the most common questions when going through a divorce in Texas is whether you can be ordered to pay or receive alimony. The word alimony is used quite a bit in our society in connection with a divorce. We hear it in movies and on television shows with regularity. In a Texas divorce, the term alimony can be confusing because multiple forms of spousal support are allowed under Texas law.

Alimony is not codified as law in the Texas family code. However, just because there is not a specific carve-out for it within the law in Texas does not mean that you and your spouse cannot agree to negotiate for some degree of alimony. Therefore, it is known as contractual alimony. Rather than having it as a specific law on the books, you and your spouse could enter a contract whereby one agrees to pay the other a certain amount of support throughout a certain period. A potential downside to contractual alimony is that a judge can only enforce in order up to the point that he or she would have been able to enforce spousal maintenance.

Spousal maintenance became a possibility for families to employ as the result of a court order in 1995. However, the state of Texas places numerous restrictions on spousal maintenance awards created by judges. Many times, a family court judge will be more willing to order a disproportionate division of the community estate rather than create an obligation to pay spousal maintenance. Such is the desire to avoid commitments like these after the conclusion of a divorce. For our purposes, I think we should look at what special maintenance and contractual alimony are to help determine which of the two may be more applicable to your situation.

What is alimony? 

the state of alimony in Texas is that it is in a bit of an in-between status. As we mentioned a moment ago there is no guarantee of alimony contained in the Texas family code. On the other hand, nothing is stopping you and your spouse from negotiating for contractual alimony as a part of your divorce. The two of you are free to enter a contract with one another regarding alimony or any other subject that is not otherwise prohibited by law. This is a different setup than in many states where alimony is codified as a part of the family codes of those states.

Typically, any language related to contractual alimony should be included in your final decree of divorce. The final decree of divorce is the document that contains the court orders for your divorce case. If you and your spouse negotiate through these issues rather than have a judge order them after a trial, you and your spouse will be able to determine the language utilized in your court order. This means that you should pay special attention to the language utilized to make sure that it reflects accurately the decisions that the two of you have made in your negotiations. The last thing you want to do is spend the time and energy negotiating on this subject only to find that the language you include in your divorce decree does not accurately reflect one or both of your understandings.

Alimony is not something that is all that common. For one, the party who would potentially pay the apple money must be in a position where they can financially afford to do so. For the most part, people are not able to meet the obligations of their household in addition to paying for items in their ex-spouses’ households. As a result, people would not willingly enter a contract where they are obligated to make those sorts of payments. If there is a disagreement on alimony or spousal maintenance, then the topic frequently goes to a trial. It is the understanding of many people that family court judges are hesitant to order spousal maintenance they would not push the subject into mediation.

On the other hand, if you and your spouse do agree to contractual alimony in settlement negotiations and your divorce then you put yourselves in a position where you can negotiate for just about whatever you would like. Keep in mind that when it comes to spousal maintenance there are limits to the amount and duration of what a judge can order a person to pay their spouse and post-divorce spousal maintenance. These limitations do not apply when it comes to contractual alimony. For spousal maintenance, there is a typical requirement that you and your spouse must have been married for at least ten years to have spousal maintenance be ordered. For contractual alimony, no such requirement exists.

Probably the most significant aspect of this discussion is that since the Texas family code does not contain statutes regarding alimony that means a family court judge cannot apply the Texas family code when attempting to enforce provisions contained in your divorce decree that relate to alimony. The judge would need to apply Texas contract law when it comes to that subject. What this means for you and your spouse varies from person to person. Before you agree to anything in mediation as far as contractual alimonies are concerned you should speak to your attorney about it. He or she can talk to you about the risks of doing so as well as the various methods of enforcement that may be available to you or not available to you depending upon the circumstances of your case.

What is spousal maintenance?

As stated in the Texas family code, spousal maintenance is an award in a divorce of periodic payments from the future income of one spouse for the support of the other spouse. Casually, these types of payments are also known as spousal support. During the divorce itself, the same type of payments may be ordered as temporary spousal support that would end after the divorce. Many people enter divorce with uncertain economic futures. For example, you may have spent most of your savings on moving, and hiring an attorney is generally proceeding with your case. As a result, you may not be equipped to be able to pay your bills or meet your basic financial obligation once a divorce comes to an end. If you were a stay-at-home parent or spouse, then you almost certainly provided a great deal of economic output for your family even if you were never paid for having done so. Consider the value of providing transportation, meal preparation, cleaning, and things of this nature.

To be eligible to receive spousal maintenance, you would need to show a family court judge that you are unable to meet the obligations of your household as far as finances are concerned. Specifically, you would need to show the judge that you were unable to meet your minimum reasonable needs as a parent or single adult.

Another way that you may be eligible to receive spousal maintenance is if your spouse had been convicted of a criminal act of family violence during your marriage either the two years before the lawsuit or during the time while the divorce is pending. Hopefully, this is not relevant to you and your family. However, if family violence has been an issue in your marriage, then it certainly could become impactful in considering spousal maintenance. 

Here are the other circumstances that can cause you to become eligible to receive spousal maintenance payments in a Texas divorce. The first circumstance that could be relevant to your situation is regarding spousal maintenance is if you have a physical or mental disability that prevents you from working. Those disabling conditions would need to prevent you from working any job where you could earn an income sufficient to provide for your minimum, reasonable needs. This does not mean allowing you to live a preferred lifestyle such as the one you enjoyed while married. This means having a place to live, food to eat, and transportation. If you truly cannot meet those minimal, basic needs then you may be eligible to receive spousal maintenance. 

As I mentioned a moment ago you and your spouse need to have been married for at least ten years for spousal maintenance to be a possibility following a divorce. The exception to this general rule is if you were a victim of family violence within the past two years then this ten-year marriage rule would not apply. 

Finally, if you are the primary caretaker for a child of your marriage who requires a great deal of care and supervision then you may also be eligible to receive spousal maintenance even if your marriage has not lasted for at least ten years. The care for your child, no matter the age of your child, may impact your ability to work. If you cannot work sufficient hours to earn enough money to provide for your minimal, basic needs. 

What are the factors a court will consider when determining the nature of support?

Once a judge decides that you are eligible to receive spousal maintenance it will then consider a list of factors that may be relevant to your case in terms of potentially assigning you the ability to receive spousal maintenance.

As we have gone over in some detail already today your as well as your spouse’s ability to provide for your minimum reasonable needs as an independent person will need to be assessed. Before a trial or temporary orders hearing you and your spouse would need to submit household budgets stating the income of your household and the bills that you are required to pay each month from there, a judge would decide whether or not you have a proven need to receive spousal maintenance and whether or not your spouse has a proven ability to pay spousal maintenance.

The education and employment skills you possess at the time of your divorce will also be scrutinized. These factors go hand in hand with being able to find employment if you are not currently gainfully employed at the time of your divorce. If you need some time to be able to complete a degree or training for a certain job then that may be considered, as well. This should be something that you make known to the court in advance. The availability of any training or education in your area as well as the likelihood of landing employment soon after your divorce must also be considered.

The duration of your marriage will also be an important consideration for the court to look at. Marriages that are longer induration may find that an order of spousal maintenance is more likely than a shorter marriage. Consider also, that the longer you have been reliant upon your spouse for income means that it is more likely for you'd need a certain period to adjust to being a single adult. People that have been married longer may have less of an ability to transfer the skills acquired at home to the workplace. This is not making a judgment on being a homemaker or parent. It is simple and the observation regarding employability after a long period of not working.

In my opinion, this next factor is among the most important. Your age, employment history, and earning ability will also be scrutinized. The older you are the less likely it is that you will be able to transition readily into the workforce. After a long marriage, you may not have worked since you were quite younger. This is significant due to the significant changes that we have seen in the economy and in hiring practices. The way you performed a certain job many years ago may be quite different than how the job is performed now. That's to say nothing of having transferable skills from past work.

Having clerical or basic computer skills are some of the most held transferable skills that people may possess. However, those skills are only transferable if you have them in the first place. For the most part, if it has been many years since you've worked at all then your computer or technical skills may be rather limited. In that case, we would need to consider the feasibility of your reentering the workforce. You and your attorney would need to think about what sort of transition time you may need to find a job. If you are already of retirement age, then you may be able to take advantage of any retirement accounts that you receive in the divorce to meet your minimum basic needs rather than receive spousal maintenance.

Additionally, your spouse’s ability to pay spousal maintenance while also paying child support will need to be assessed. This goes back to the topic that I mentioned at the beginning of today's blog post. Namely, very few people have the money in their budget to be able to pay for special maintenance on top of their bills. If you consider the need to pay child support on top of both factors, then you are putting yourself in an untenable situation if you are asking for spousal maintenance of any size. Even if you do you cannot provide for your own minimum basic needs after the divorce if your spouse cannot pay support then a judge will not order it, simply put.

An interesting topic and factor that a court would consider is the role your spouse may have played in harming your family finances. For example, if your spouse attempted to conceal assets, hide debts, or even take out debt in your name without notifying you then these may be grounds for divorce as well as factors that are in your favor as far as the ordering of spousal maintenance. As an innocent spouse, You should consider what role your spouse played in the divorce. Talk this issue through with your attorney to determine the strength of your case in pursuing post-divorce spousal support. Depending on how strong of a case you have may be better off trying to negotiate for an unlimited amount of contractual alimony directly with your spouse rather than pushing the case to a trial only to have a judge tell you that the above factors are not in your favor when it comes to assessing 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 in person, 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. Thank you for your interest in our law office and we hope that you will join us again tomorrow as we continue to share relevant and interesting information about Texas family law.

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