When it comes to alimony, Texas is sort of a weird state. For one, there is no such thing as straight "alimony" in Texas. There is contractual alimony which is a form of post-divorce spousal support that you and your spouse can agree to be paid one to the other. You all come up with the terms of the payments, the duration, the amount, etc. It is a contract between the two of you- hence the name "contractual" alimony. You all can settle upon this issue before a trial and not even need to go to trial to have spousal support determined. However, a judge can only enforce a contractual alimony order to the extent that he or she would have been able to enforce spousal maintenance that he or she handed down in a trial. There is some risk to agreeing to contractual alimony in the event your spouse does not pay after the divorce is over.
Spousal maintenance is the second kind of post-divorce spousal support that could be handed out in your divorce. It is not exactly handed out, however. A judge would hand it out to you or your spouse, potentially, after a divorce trial. One of you would need to show that you cannot meet your minimum basic needs with only your income and your community property after the divorce. Assuming that you have been married for at least ten years then a spousal maintenance award is possible. You would need to take your case the distance and have a judge award the maintenance to you. That is a long row to hoe with a lot of work involved just to get this award.
We hear about alimony from all different places but mostly, at least from my experience, it is on television and in movies that we hear a lot of interesting stories about alimony. The rich old man divorces the younger wife for an even younger woman. The former wife has no education or job skills, so she is seeking to take the old man for all he’s worth. Chaos ensues, a storyline develops and the alimony either ends up being paid or not. This is all good and well, but it doesn’t exactly match up with the reality that most people face when it comes to alimony.
For most people who are asking for spousal support after the divorce, it is not out of greed or revenge. If you haven't noticed it is a tough environment out there when it comes to costs of housing, food, gas, clothing, education, etc. If you are in a position where your spouse is asking you for contractual alimony but are not willing to agree to pay that then you need to seriously consider your chances of being ordered to pay spousal maintenance by a judge after a trial.
If you and your attorney talk it over and you come to realize that the odds are really good that a judge will order, you to pay spousal maintenance then you may as well negotiate with your spouse for contractual alimony instead. This will at least allow you to save some time and probably a significant amount of money considering the amount of preparation and time required to attend a trial for your attorney. Therefore having an experienced family law attorney representing you in the divorce is so critical. You do not want to agree to something in mediation that you would have no chance of being ordered to pay in a trial. That is the definition of foolish unless you want to pay contractual alimony out of the kindness of your heart.
Today's blog post from the Law Office of Bryan Fagan is going to focus on how to avoid paying contractual alimony. The big thing that we need to keep in mind is that agreeing in your divorce to pay contractual alimony is not mandatory but paying the contractual alimony previously agreed to will be mandatory for you. With that said, if you can avoid paying it, to begin with, that is the best route to take in your divorce. A lawyer can help you figure out how to do this and do so in a way that is most advantageous to you.
The attorneys with the Law Office of Bryan Fagan are here to assist you in your divorce. No matter the circumstances we have attorneys who have walked with people just like you in circumstances just like you are facing. If you don’t believe me- give our office a call today to set up a free-of-charge consultation. Let us know what you are going through and the help you need. We will schedule that consultation and walk you through the type of plan we could implement in your case if you decide to hire us.
Avoiding alimony- here’s how
We have already touched on how life is expensive, to begin with. Taking into consideration that divorced people are going from a two-income household into a one-income household that becomes an even more burdensome situation. If your spouse has not worked much or earns very little there may be a legitimate need for temporary support during the divorce to help him or she get on their feet from a financial standpoint. Here are some tips to minimize your exposure to alimony in a Texas divorce.
Don’t pay alimony in the first place!
There’s an old expression in the world of medicine that goes something like: an ounce of prevention is worth a pound of cure. Meaning- if you can do a little bit to prevent something, that is worth even more than the great amount of effort needed to cure a condition once it has developed. Meaning- nip it in the bud! As it relates to the world of alimony- don’t get put into a position where you have to start paying alimony or spousal maintenance at all.
A prenuptial or nuptial property agreement may be just what you and your spouse need to avoid putting yourself in a situation where you are either needing to negotiate through this issue or worse yet- must leave it up to a family court judge to do this for you. Not exactly an ideal spot to find yourself in. The only problem with most of you reading this blog post is that you all are probably too far along the road to divorce to even consider negotiating a marital property agreement. However, for those of you who are here just out of curiosity then you should take note to consider how important one of these documents can be to your long-term planning future.
A typical premarital property agreement will contain information about income for both of you, your assets (separate property), and a plan for how to handle your finances in the event of a divorce. You are planning on getting divorced at that point. Why get married if you were? However, it is a sort of strategy to negotiate through these subjects now rather than to wait until a divorce is on your doorstep. There is something about a divorce that turns people’s brains to mush in a lot of different ways. Or at least, there are some challenges associated with a divorce from being able to use your executive functions well. In that case, why not negotiate when you have a clear mind and are not completely upset with your spouse?
You can divide up your property however you see fit. You can plan for spousal maintenance and alimony. Even if you are in a position where a marital property or premarital property agreement is no longer an option for you there are still creative ways for you to attack this issue. For one, you could offer your spouse a greater than 50% share of your community estate. This would allow him or her to retain a substantial amount of your marital property. This property can be liquidated to allow him or her to have cash available to pay for the essentials until he or she can find work or otherwise stabilize themselves financially after the divorce.
Another aspect of this discussion to think about is whether to make offers to your spouse for assets and property that are easily sold in the short term. Offering your spouse, a higher percentage of retirement benefits or even real estate is not exactly a settlement offers that offer a great deal of liquidity. Instead, think about assets that can be sold quickly and that cash put to good use.
One last method is a lump sum payment. You can pay alimony to your spouse in a one-time payment rather than smaller payments over a long period. The argument that you can make is that the money can be invested and grow to be more money than he or she would have received had a traditional amount of alimony or spousal support been agreed to. The potential arguments that you may receive as a counter to this position are twofold.
For one, you may find that you do not have the cash to make that sort of settlement offer. This isn’t so much a counteroffer from your spouse but rather a circumstance that you may encounter that prevents you from being able to avoid alimony or spousal maintenance. Cash is King, as they say. If you are in a strong position with cash, then the rest of this discussion may be able to just sort itself out. Don’t rely on debt, pay off the debt you have and otherwise save up if possible. This may be an argument that you can make successfully.
The other counter to this sort of argument is that while having the money in a lump sum now may appeal to your spouse, the idea that investing the money may mean losing money in either the short or long term may be enough to spook your spouse into not agreeing to that sort of deal. However, if you show your spouse the type of investments, like index funds, where the money can conservatively be invested that can open several possibilities.
Did your spouse commit adultery?
If your spouse is asking for money in spousal maintenance or contractual alimony, you may be able to nip that argument in the bud by showing that he or she was unfaithful to you during your marriage. Many family court judges are not willing to order spousal maintenance for your spouse if he or she can be proven to have committed adultery. However, saying that your spouse committed this sort of act and proving that he or she did are different things altogether.
Collecting witness statements is a good place for you to start the process of evidence collection. Affidavits are sworn statements under oath. Your witnesses can draft an affidavit, sign the form in front of a notary and then have the form notarized and prepared to be entered into the record during a trial as evidence. Or, you should have these affidavits ready to be presented as evidence during mediation. Your spouse may back down from asking for alimony in mediation if she is shown 5 different affidavits all telling a similar story about how they witnessed your spouse engaging in infidelity.
Ultimately it will be up to a family court judge to decide about spousal maintenance. It is anyone’s guess how a family court judge will rule on any given subject on any given day. That is why I counsel clients to remember that going before a judge in any circumstances carries with it a certain degree of risk. Even if you think you know how a judge is likely to rule that does not guarantee you much of anything. When your finances are at stake you may not be as willing as the next person to risk it and go to trial.
Having solid evidence not only of the infidelity but also of how the infidelity impacted your marriage is even better. If the infidelity harmed your children, then that will almost certainly leave an impact on the judge. Next, if you can show that your spouse utilized community property resources to facilitate a meeting, trip, or other engagement with their paramour then you put them in a difficult position to come back and try to ask for spousal maintenance.
What about your spouse- can he or she work?
One last subject that I would like to get into during today’s blog post is the ability of your spouse to go out and work. During your marriage, you and your spouse may have agreed that she was going to stay home to raise the kids, care for the house and perform other domestic duties. Certainly, this is work and certainly, this is work that has a tangible value. Imagine if you didn’t have a spouse to perform those jobs while you were working. What would you need to pay for someone to come in and: cook, clean, change diapers, pick up the kids, drive the kids to soccer, etc.? That would end up costing you a pretty penny after a while.
Sometimes your spouse has not worked in a long time, or possibly has never worked, but does have skills and education. We all probably know a handful of people who have college degrees but do not work because they want to stay at home to help raise the kids. That's great. However, doing so has consequences in terms of losing out on the ability to enter the workforce, build your resume, and begin to earn a salary that would allow your spouse to be able to start gaining some degree of financial independence.
The amount of spousal maintenance that a judge may order is limited to 20% of your gross income. There are also time limits related to how long spousal maintenance can be paid based on the length of your marriage. The judge may also order spousal maintenance to be paid only for as long as it takes for your spouse to be able to gain a footing financially speaking and care for themselves and their household as an independent adults.
It may be completely reasonable for your spouse to need some degree of financial assistance immediately after a divorce to help her gain a solid grip on paying bills, finding a place to live, and things of that nature. Remember those first few months (or even years) after college? It may have been a similar situation for you back then that your spouse is facing now. Either way, go into your divorce with a plan on how to approach the subject of post-divorce spousal maintenance and you will be better off.
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 how your family's circumstances may be impacted by the filing of a divorce or child custody case.