Let's suppose that you have already gone through a divorce case and have been ordered to pay spousal maintenance as a part of your trial. In that case, you may assume that you are stuck paying the maintenance to your ex-spouse for as long as you are ordered to do so. However, this is not necessarily true. The factor that is the most important to consider in this regard relates to whether your ex-spouse has been getting involved romantically with someone else.
If your ex-spouse is involved in a romantic relationship, then you may be able to avoid paying spousal maintenance in the future. Here is how you can make this your reality. You would need to be able to prove to a judge in a hearing that your ex-spouse has started this kind of relationship. That can be accomplished by proving that he or she is in a romantic relationship and is cohabitating with that person. These are the grounds that you would need to file and win a petition to terminate an order of spousal maintenance.
This can be easier said than done, however. Proving that your ex-spouse is in a cohabitation situation with a romantic partner isn’t easy. We can all imagine how easy it would be potentially to be able to argue that you weren’t “really” in a romantic relationship with another person or that you weren’t “truly” cohabitating with him or her. These are the sort of situations that can somewhat easily be wiggled out of by your spouse. That means you need to be very good about collecting evidence to present at a potential hearing.
Social media is a great place to catch your ex-spouse red-handed when it comes to being in a romantic relationship. People tend to let their guard down when it comes to how they use social media. Use that to your advantage! See if your ex-spouse is posting photos of a new house or apartment where it is obvious that their significant other is living with them. If your ex-spouse has remarried, then that is all the proof you need to have your spousal maintenance obligation ended.
One thing that I will make note of is that the same rules that apply to spousal maintenance may not apply to contractual alimony. They probably won't unless you insert language into your Final Decree of Divorce that allows you to stop paying spousal maintenance if you or your spouse remarry or even begin to cohabitate with a romantic partner. That’s the important thing regarding contractual alimony to be aware of- the rules associated with enforcing and terminating spousal maintenance do not explicitly apply to contractual alimony. Rather, you should try to be as specific as you can be when it comes to including language in your Final Decree that allows you to stop paying maintenance if certain events occur in the life of your ex-spouse.
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The longer you are married in Texas, the longer you may also be on the hook to pay spousal maintenance. Texas law makes it difficult to be awarded spousal maintenance. You must have been married for at least ten years in Texas to be awarded spousal maintenance in most circumstances. There is an exception based on family or domestic violence in the marriage, however. If you are disabled or are the primary caretaker for a disabled child then you, too, may be able to be awarded spousal maintenance even if you have not been married for ten years or longer. Additionally, your spouse would need to be able to prove that he or she is unable to meet their minimum basic needs.
The presumption that a judge must go into the analysis of spousal maintenance with is that your spouse should be awarded the minimum amount of spousal maintenance to meet their minimum basic needs. The idea that your spouse is going to be awarded a sum of spousal maintenance that will allow her to live a lifestyle that is opulent or grand is not based in reality. If you have friends or family members who are telling you to be ready to pay through the roof levels of spousal maintenance that isn’t realistic, either. You are limited to paying up to 20% of your monthly gross income in spousal maintenance.
There are caps on the duration that spousal maintenance can be ordered by a family court judge. Ten years is the longest period that a judge can typically award spousal maintenance for marriages that have lasted longer than thirty years. Twenty-to-thirty-year marriages are eligible for seven years of spousal maintenance and marriages that lasted between ten and twenty years are eligible for up to five years of spousal maintenance. Note that I am saying "up to" five, seven, or ten years. The judge doesn't have to, and quite possibly will not, award your spouse the maximum length of spousal maintenance available under the law.
Look at your life and your budget
A divorce frequently pushes people to make changes in their life. Romantically, relationally, familywise, financially- the list of changes that you may undertake in your personal life could go on and on. If you are approaching divorce and are the spouse who earns more money, then you would be the person who would be on the hook to pay spousal maintenance or contractual alimony. As I am sure you have already guessed the spouse who earns more money does not get paid spousal maintenance or alimony all that often.
Many people in your shoes would think about taking a lower-paying job simply to avoid being on the hook for spousal maintenance. You can't get blood out of a turnip, as they say. However, this is not only going to put you in a tough position (you still have bills to pay, after all) but is penny-wise and pound foolish. I would prefer that you start to budget your lifestyle and prepare for the possibility of paying for spousal maintenance. If you have never operated under a budget, then you probably have no idea where your money is going. You may be spending money on things that you had no clue about. That money can be better utilized to pay off debt, pay child support, or pay spousal maintenance if you absolutely must do so.
Show the judge that your spouse does not need to be paid spousal maintenance
To “get back” at you for the divorce or for anything that they didn’t like during your marriage, your spouse may be seeking alimony as a way to even the score or something to that effect. I tell people all the time that divorce does something to a person's brain where you temporarily lose the ability to function as well as you did before or after the divorce comes to an end. The stress and worry that comes with divorce are real.
Your spouse may be pushing for alimony that he or she may not truly need, as a result. Maintaining a certain lifestyle is not a good enough reason to be paid alimony. Rather, your spouse must show that he or she lacks sufficient income or resources to provide for their minimum reasonable needs. That means paying your bills, having a place to live, and being able to get to and from work. It is not the same thing as being able to live the same lifestyle that you had become accustomed to as a married person.
However, it can take a lot to convince a person that this isn't their right or that this isn't reasonable to be looking for in a divorce. What you can be doing during the divorce is to look for reasons why your spouse has sufficient resources to be able to care for themselves after a divorce. Does your spouse have a significant amount of separate property? Did she recently come into a large inheritance that will allow her to make ends meet until she can find employment? These are just a few examples of how your spouse may be able to keep their head above water financially in the short term.
You can start to look for this kind of information in earnest during the discovery phase of your divorce. Discovery is a process whereby you and your spouse will both be able to ask for documents, answers to questions, and other information about their case. Typically, he or she will need to send back responses or objections within thirty days of receiving the discovery requests. This is a good way to determine your spouse’s plans for alimony as well as what resources may be available to her that could negate the need for alimony or spousal maintenance.
What is the custody situation with your kids?
Depending on how much your spouse is going to have your children after the divorce he or she may not even need spousal maintenance or contractual alimony. The cost of living and maintaining a household increases when you have children. Depending upon the needs of your children this increase in cost may not be significant. However, if your children do not have special needs the costs could be lower than you may imagine.
If you are awarded primary custody of your children, then that lessens the amount of time that your spouse must be caring for them. Therefore, it would stand to reason that the costs associated with raising the kids would also decrease. If you are the one who is providing most of the care to your children, then you should not also have to pay child support unless there is a massive disparity in income between you and your spouse in terms of your income.
When do the payments need to end?
Spousal maintenance payments typically last for a maximum of five, seven, or ten years depending upon the length of your marriage. Marriages that lasted between 10 and 20 years can receive a maximum of five years of spousal maintenance. Twenty-to-thirty-year marriages can receive a maximum of seven years while marriages that have lasted at least thirty years could receive a maximum of ten years of spousal maintenance. However, a judge in Texas will award the minimum amount of spousal maintenance that is necessary to allow the receiving spouse to meet their minimum, reasonable needs.
This is an important point to make because many people operate under the assumption that their spouse is going to be paid spousal maintenance or alimony for an indefinite or even never-ending period. Spousal maintenance will always have a termination date unless your spouse has a disability that prevents her from working or unless your spouse is going to be the primary caregiver to a child that requires around-the-clock care. In that case, a court will likely require your spouse to provide regular updates on their condition to determine whether or not spousal maintenance will continue to be necessary.
Another aspect of the discussion that I should mention is that if you agree to contractual alimony with your spouse you need to be careful to include a termination date if you want there to be one. While spousal maintenance will almost always have a "cut-off" date, the same cannot be said for contractual alimony. If you and your spouse agree to contractual alimony, then there is no end point to that sort of payment under the Texas Family Code. To avoid being under a contractual alimony obligation for an indefinite period you can and should negotiate for a specific termination date.
Final thoughts on spousal maintenance and contractual alimony
Ultimately, all of the information contained in this blog post are based on my hypothetical situations which may or may not line up with your life. With that said, you need to have a plan of action heading into your divorce that is based on the specific circumstances that you are facing. What does this mean for you on a practical level?
Understand your budget when you head into a divorce. You should take the time to map out your take-home pay, your bills, what you anticipate child support will be (if any) as well as what a general budget will look like for your home as a single adult. This will help you to be able to plan out whether you even have the money in your budget that is necessary to pay spousal maintenance. For all the talk about your spouse's needs, you have basic needs as well. Prepare a budget for a judge to review. This way you will have done your due diligence as far as your case is concerned.
Next, you must have a good idea of what your spouse's needs are as far as spousal maintenance. If you don't inquire about their budget, their income, and their separate property then you will not have any clue about how whether or not he or she needs spousal maintenance. As we mentioned a moment ago, going through discovery with your spouse is the best way to receive a great deal of the information that you will need in this regard. The more prepared you are with this information you will be able to negotiate with your spouse in mediation.
If you are going to be negotiating contractual alimony in mediation, then you should be prepared to offer multiple types of payments. A lump sum payment may be preferable to your spouse if he or she needs a larger amount of money now. For example, she may be trying to complete a vocational training course or even a four-year college degree. A larger infusion of cash now may be preferable to receiving smaller sums over a longer period.
Finally, you need to be able to have someone by your side when it comes to negotiating on this subject in mediation or litigating this subject in a trial. There is so much at stake when it comes to the subject of post-divorce spousal support. The difference between paying seven years of spousal maintenance and not having that obligation is substantial. Think of what you can do with that money- pay down debt, help your children save for college- the list goes on and on. If your spouse has a legitimate need for temporary support that is one thing. However, if your spouse is merely trying to be aggressive in their negotiations but has no real need that is something you should be prepared to rebut with evidence of your own.
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 may be impacted by the filing of a divorce or child custody case.