Spousal Maintenance (Alimony) – Texas Family Law changes by the Texas Legislature in 2011

In addition to the changes I discussed in my earlier blog entitled “Texas Family Law changes by the Texas Legislature in 2011,” significant revisions were made to the Spousal Maintenance (Alimony) statute by the Texas Legislature in 2011. In 1997, the Texas Legislature passed the first Spousal Maintenance (Alimony) statute under Texas Family Law. Until 2011, that statute remained basically unchanged.  They made up for that in 2011.

The primary changes cover:

• duration of the spousal maintenance order
• doubling the maximum spousal maintenance available
• a definition of gross income for purposes of determining the amount of spousal maintenance
• additional clarifications about suing for overpayment, ability to pay and justification for granting spousal maintenance

Duration of a Maintenance Order

The most significant change was to increase the maximum duration of a spousal maintenance order. In the old statute, maintenance could not be ordered for more than three years, regardless of the length of the marriage, unless the spouse seeking maintenance could not meet minimum reasonable needs through appropriate employment or developing a skill because of (a) a physical or mental disability, (b) duties as custodian of a minor child who requires substantial care and personal supervision because of a physical or mental disability, or (c) another compelling impediment. In this case, maintenance may continue as long as the applicable impediment continued.

Under the new statute, the length of the marriage is now a factor in the maximum duration. The threshold period of marriage remains 10 years. Parties must be married for at least 10 years to qualify for maintenance, except in a situation where the spouse from whom maintenance is sought has been convicted or received deferred adjudication for a criminal offense that also constitutes family violence (and the offense occurred within two years of filing for divorce or during the time divorce was pending). In this case, there is no required length of marriage before maintenance can be ordered.

When any of these conditions are met, the Court may order maintenance for a maximum of 5 years if a spouse has been married between 10 and 20 years; a maximum of 7 years if the marriage lasted between 20 and 30 years, and a maximum of 10 years for marriages in excess of 30 years.

As with the old statute, the Court may continue maintenance for a longer period than stated above in the event of a physical or mental disability, duties as custodian of a minor child, or another compelling impediment remain in place.  The legislature clarified the wording of this provision in the new statute but the minor clarification did not change the substance or original intent of that portion of the statute.

Amount of Maintenance and How It Is Calculated

The maximum amount of maintenance available has been doubled from $2,500 to $5,000 per month.  The amount is still based on gross income (20 percent of gross income or $5,000, whichever is less), however, gross income is now defined. The factors to be considered are similar to those contained in the statute that governs how child support payments are calculated.

Overpayment Reimbursement and Attorney’s Fees Recovery

Lastly, there have been some interesting clarifications to the statute. If the paying spouse overpays and the receiving spouse refuses to return the overpayment, the statute now specifically provides for the paying spouse to sue and attorney’s fees must be reimbursed by the receiving spouse, unless there is a showing of good cause why they should not be paid. This mirrors the statute for the overpayment of child support.

The “Feasibility” Test

Another clarification is the addition of feasibility as a test regarding a spouse acquiring education or training to earn sufficient income so that maintenance may no longer be needed. In some cases, the Court may decide it is not feasible to get that education or training.

Employment Issue

Various references to “employment” have been changed in the language to mean that if a spouse is earning sufficient income to provide for their minimum reasonable needs, that is sufficient. This closes a loophole where a spouse actually had “income” coming in from sources other than “employment.”

As you can see, some of these changes are quite significant while others basically clean up certain language that has created confusion about the legislative intent.