Determining whether you will have to pay alimony or spousal maintenance in your Texas divorce is a critical question to ask yourself. To be sure, the need to pay spousal maintenance does not arise in most divorces. The fact is that most of us do not have the extra income in our budgets to pay our household expenses and those of an ex-spouse. No matter how deserving your ex-spouse's case may be for spousal maintenance it is not at all likely that you will be ordered to pay spousal support unless you agree to it in negotiations.
We can distinguish between spousal maintenance and contractual alimony. Spousal maintenance is a court-ordered form of post-divorce spousal support. There are restrictions on when spousal maintenance can be ordered, for how long it can be ordered, and the amount of monthly support that goes with an order. Typically, you and your spouse must have been married for at least ten years for your spouse to be eligible to receive spousal maintenance. Next, she must be able to show the court that she is unable to meet her minimal, basic needs on her own. This could be based on her having a low income, no income or not having sufficient community property to devote to her support.
Disability also factors into this decision. For example, if your spouse is disabled and therefore unable to work then this is a reason in and of itself that can allow a judge to order you to pay spousal maintenance. Additionally, if your spouse cares for a child of your marriage, no matter their age, who has a disability then spousal maintenance can be ordered if she is unable to work due to the responsibility of caring for this child. Spousal maintenance is something that will not be ordered in every divorce. Judges will not order spousal maintenance unless a need is proven through evidence and an ability to pay by your spouse is displayed clearly.
What about contractual alimony?
Contractual alimony is not spousal maintenance, and spousal maintenance is not contractual alimony. We hear about alimony all the time it seems from the culture we live in. Movies and television shows talk about alimony like it is a given during a divorce case. In Texas, alimony is not a right protected by the constitution or the Texas family code. Rather, alimony is a concept covered by Texas contracts law.
In Texas, you and your spouse can contract for alimony or post-divorce spousal support. This means that the terms of your agreement would need to follow contract law principles rather than the Texas family code. Why is this important? Say that you and your spouse negotiate for contractual alimony as a part of your divorce. As a result, you will need to be able to enforce that agreement if your spouse fails to pay you the support that you negotiated for. With that said, a judge would look to contract law in terms of enforcement of the agreement rather than anything contained in the Texas family code. This is significant for several reasons.
The most important of which is that the family code provides for certain recourses, including jail time, for the failure to abide by the terms of a divorce decree. This is most likely regarding the failure to pay child support However, that remedy is not available under contract law. Contract law bars a criminal penalty to be imposed regarding a civil matter like the violation of a contract. Therefore, all the remedies available to a person under the Texas family code would not be made available to you under contract law.
Additionally, the terms of your contractual alimony payment would only be enforceable to the extent that a judge could order spousal maintenance in the same situation. So, if you signed an agreement that would allow for a fifty-year payment of contractual alimony totaling $20,000 per month then a judge would only be able to enforce a portion of that agreement given that the years and dollar amount of the contractual alimony go well beyond what could be ordered in terms of spousal maintenance. This is a limiting factor that may impact your willingness to agree to certain terms of a contractual alimony provision.
How is spousal maintenance calculated?
There are limits to how much money you would be ordered to pay per month to your ex-spouse in spousal maintenance. The Texas family code says that the maximum amount of spousal maintenance that a court may order is 20% of your (the paying spouse's) average gross monthly income, or $5,000, whichever is less. Gross income includes wages, tips, commissions, salaries, investment income, and other sources of income. You and your spouse can agree in mediation to a different amount of alimony. The $5,000 limit is just what the court is limited to ordering in spousal maintenance. A greater or lesser amount can be agreed to.
How long can spousal maintenance be ordered?
The duration of a spousal maintenance order depends upon how long you and your spouse were married. The longer that the two of you were married the longer the maintenance can be ordered for. A maintenance award of up to five years exists for parties who were married for less than ten years. This can occur if you were convicted within the past two years of a crime involving family violence. Additionally, if your marriage lasted at least ten years but no more than twenty years an award of five years would also be appropriate. A seven-year award of maintenance can be extended to your spouse if your marriage was between 20 and 30 years in length. Finally, a ten-year award can be ordered for parties who were married for more than thirty years before the divorce began.
Overall, a family court judge must craft a spousal maintenance order based on the shortest reasonable time possible that will allow your spouse to be able to provide for their minimum basic needs without outside support from you. The periods I covered with you a moment ago are a guidepost for judges. They cannot exceed those durational limits, but they can order support for lesser periods.
The ability to meet your spouse's minimal, basic needs usually means finding work opportunities that can help them pay their bills. The circumstances of your case will determine how readily your spouse can shift gears and find work if she has been in the home for some time. Her age is a big factor in this discussion. For instance. If she is younger and has an education that allows for ready entry into the workforce, then you may be ordered to pay a shorter amount of spousal maintenance. On the other hand, if she is older and has no education that allows for easy entry into the workforce you may be on the hook for a longer period of spousal maintenance. The physical condition, job market, and other factors can also be considered by family court judges.
What did your spouse do to help you get where you are?
Another factor that is often overlooked but is nonetheless very important is the role that your spouse played in helping you gain the education and experience needed for you to find employment in whatever you do. This could be something where your spouse chose to stay home and raise a family and take care of the home to allow you the time to go to school or gain a certain level of experience. Or your spouse could have taken on a role early in your marriage where she waited tables or did another type of job while you attended school. This is a direct contribution that your spouse made to the family and to your ability to earn an income.
What if circumstances change? Can spousal maintenance or alimony be terminated or modified?
As with most any situation involving Texas family law, your circumstances may change over the years when it comes to your living situation. As it pertains to spousal maintenance certain conditions must remain in effect for you to be eligible to receive the payments promised to you in the final decree of divorce. If you change your circumstances, then you would no longer be eligible to receive spousal maintenance. Notably, if your ex-spouse begins living with another person with whom he or she is involved in a romantic relationship then you can take that issue to the court for a termination of this special maintenance obligation.
This becomes a sort of cat and mouse game in many situations. The game begins with you filing a termination of spousal maintenance lawsuit with the family court. The next step is your ex-spouse receiving notice from you of the lawsuit having been filed. At that stage, she and her significant other must figure out how they can cover up the cohabitation. I have seen people go to extreme lengths when it comes to trying to cover up a cohabitation situation. All of this would be done to allow your ex-spouse too to remain eligible to receive this spousal maintenance payment.
Some of the most difficult parts of this type of case would be for you to collect evidence showing that your ex-spouse is cohabitating. It will be tempting to drive over to their home and try to take some pictures through the window or something like that. You should work with your family attorney on the best way to collect evidence. Trying to go too far in collecting evidence like this could put you in harm's way. The last thing you want is to have your ex-spouse or their significant other run out onto the driveway when they notice your car pull up to take photos.
Using social media to your advantage could be one way to obtain the evidence you need to show that your ex-spouse is now cohabitating with a person that they are in a romantic relationship with. A series of photographs showing the biggest two people together clearly in a home environment or referencing our house or our home in social media posts or photographs can be a way for you to obtain evidence to show that cohabitation is occurring. This is a safer wait for you to obtain the evidence if nothing else.
Once the judge considers all the evidence a ruling will be made as to whether spousal maintenance will be terminated. If your spousal maintenance obligation is terminated, then the court will ask that to be issued formally doing away with the obligation. Please note that you and your attorney will need to ask about any outstanding amounts of spousal maintenance that may be owed. In many cases, if you owe any spousal maintenance from previous court appearances then those amounts will still need to be paid before your overall obligation is discharged. The last thing you want to do is think that you are all done with spousal maintenance only to find that there are back amounts of spousal maintenance that still need to be paid.
When it comes to modifying a spousal maintenance order, your case would follow the same process that any modification case would in a Texas family law scenario. When it comes to attempting to modify a family court order you would need to show that a material and substantial change has occurred in your life or that of your ex-spouse. Material and substantial means that the change would need to be extremely significant thus warranting revision of the spousal maintenance order. What this means for you and your spouse it could be any number of different scenarios.
I think the most straightforward example of why you may need to modify a court order would be if you're income took a dramatic decrease. We can think of any number of circumstances that may have led to a decrease in your income. Examples would be job loss, a reduction in hours, changing jobs because of unfavorable economic conditions, and anything in between. Additionally, you may have seen your living expenses change or you may have become disabled or otherwise unable to work. These are the sort of situations that may merit a reduction in your obligation to pay spousal maintenance.
You will need to include an affidavit with your modification petition detailing the circumstances that have led to your filing of the modification. A modification case is not one where you should be overly confident that you can represent yourself adequately. There are many moving pieces to a modification case like this. Assuming that it is something that you can handle on your own in addition to the other responsibilities that you have in your life would be a stretch for most people. For that reason, when you finish reading today's bike post why not reach out to talk to the Law Office of Bryan Fagan about this matter? When you consider that thousands of dollars are at stake making this phone call could be one of the best investments of your time than you ever make.
Closing thoughts on the need to pay alimony in Texas
When it is all said and done, your specific need to pay alimony in a divorce circumstance will be determined by several different circumstances. To assume that it will be necessary for you to pay alimony or spousal maintenance without seriously considering all the circumstances of your case and your life would be a major mistake. Rather, it would make much more sense for you to take the time to examine your finances, and those of your fouls and make it a termination if your spouse would even be eligible to receive spousal maintenance. If not, then determining Whether or not you would be willing to pay contractual alimony would be the other consideration that you need to make.
Having an experienced family law attorney to assist you during this stage of your case is important. Not only do attorneys serve a specific purpose within the case itself but they can also provide you with guidance and advice on post-divorce matters even before your case is done and over with. Learning how other people succeeded in their lives after a divorce and where other people fell short is a great perspective for you to gain. Being able to ask questions of experienced attorneys and gaining insight from them is a good place for you to begin this process.
Do not underestimate the impact that spousal maintenance or contractual alimony order can have on your life. If you are at all unsure about the divorce process or have any questions about what you have just read please do not hesitate to contact our law office today.
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.