Spousal Maintenance and Alimony in Texas Family Law

Many people believe that, with the passage of the Texas Spousal Maintenance statute in 1995, we now have alimony in Texas. That is not the case.

Spousal Maintenance is not “alimony” in the traditional sense and that is why it is not called alimony in Texas Family Law. We do have contractual alimony in Texas, which I will discuss later in this blog. Contractual alimony, as you can presume by its name, must be agreed to between the parties, a judge cannot order it. However, a judge can enforce contractual alimony once the parties have agree to it.

For the purposes of this legal update, I will refer to spousal maintenance for final orders. In Texas Family Law, before a divorce case is final, the Judge has the power to order temporary spousal support without requiring the party asking for the spousal support to meet the stringent requirements for Spousal Maintenance pursuant to the statute on final orders. This is because, until the case is final, the presumption is that all income to the estate is community property. Consequently, the judge is simply ordering that a portion of the community estate be used to pay the expenses of one of the spouses while the case is pending before the court.

Spousal Maintenance is only available in a divorce case. The presumption in Texas is that a spouse is NOT entitled to spousal maintenance. That means if you want the Judge to order your spouse to pay you spousal maintenance, you must prove that you qualify. Read more about spousal maintenance here.

Qualifying for Spousal Maintenance

In order to qualify for spousal maintenance, you must show the Judge that the spouse lacks sufficient property, including the separate property of the spouse (to see a definition of separate property, please see my blog entitled “Characterizing property in a divorce settlement – community versus separate property” – it is under the Community and Separate Property category – to provide for the spouse’s minimum reasonable needs, AND the following:

1. That the spouse from whom maintenance is sought was convicted or received deferred adjudication for a criminal offense that also constitutes an act of family violence during the marriage and within two years of the date the divorce was filed or while the divorce case is pending, or
2. The spouse seeking maintenancea. Is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;b. Has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; orc. Is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.

There are specific factors that the Judge may consider in determining the amount and duration of the maintenance. This blog will not be focusing on that part of the statute. The focus of this blog is what a spouse must prove to be awarded maintenance on a final basis. It is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in

(1) earning sufficient income for the spouse to provide for the spouse’s minimum reasonable needs; or

(2) developing the necessary skills to provide for the spouse’s minimum reasonable needs during a period of separation and during the time the suit for dissolution of the marriage is pending.

What this means is that the spouse seeking maintenance has to be able to prove to the Judge that they have sought employment that can meet their minimum reasonable needs and been unsuccessful or that the spouse has sought the training necessary to meet those needs through appropriate employment during the period of time that the spouses have been separated. This could mean learning a trade or seeking further education.

You will no doubt have been wondering what the judge believes constitutes “minimum reasonable needs.”

This is a fact issue for the judge to decide. At least one case found that the wife’s minimum reasonable needs were just over $9,000 per month and that her income combined with child support was less than the amount. The Judge found that the wife qualified for spousal maintenance.

In another case, the wife showed to the Judge that her minimum reasonable needs did not exceed $1,455 per month. The wife in that case received $603 per month in SSI benefits and was awarded $1,000 per month as part of the division of property (not spousal maintenance). Since her monthly receipts exceeded $1,455 per month, she did not qualify for Spousal Maintenance.

Still another case finds that, just because a spouse’s monthly expenses exceed their monthly resources, does not automatically entitle them to be awarded spousal maintenance to make up the shortfall. One of the reasons for this could be that the Judge determines that the expenses can be reduced to match the spouse’s resources.

Therefore, what constitutes “minimum reasonable needs” will vary depending on the actual expenses of the spouse seeking maintenance and whether the judge finds that the expenses proved by the spouse are reasonable. The judge has discretion on whether a spouse should be awarded maintenance. If you think they made a mistake, your remedy is to appeal the decision, which could be a costly process. A party will have to determine if the expense is sufficiently less than the hoped for result to justify this additional expense.

Now to Alimony

As I said earlier, the only alimony we have in Texas is contractual alimony. Typically, the way contractual alimony is used in Texas is to provide one of the spouses a stream of income for some period of time. This is typically used as an offset in the division of property.

For example, assume that the parties have a one-million-dollar estate that is made up of primarily a house, cars and retirement benefits. One spouse earns significantly more than another. If you presume that the estate will be divided equally between the parties (this is rarely the case, however, I am using it for this example because it is easier to understand that way), then each would be awarded $500,000 in assets. The spouses have $20,000 in cash, a $300,000 house and $680,000 in an IRA. The spouse earning less money is 40 years old and really needs cash rather than a portion of a retirement account that will not be available to her (unless the spouse wants to pay the taxes and penalties necessary to take money out of the IRA).

If the lower earning spouse wants to keep the house, then the parties could agree that the higher wage earner will pay $100,000 in contractual alimony over a period of three years, the other spouse receives $90,000 out of the IRA, along with $10,000 of the cash. The higher earning spouse will then receive $10,000 of the cash and $590,000 from the IRA. Keep in mind that the IRA money is tax-deferred, so the higher earning spouse may want to negotiate this agreement taking into account that taxes will have to be paid on the IRA funds when the money is withdrawn.

If you are scratching your head over this, think about what you would prefer, $50,000 in cash on which the taxes have already been paid, or $50,000 in an IRA on which the taxes have not been paid. When looked at this way, I suspect you will agree with me that anyone would take the cash. The cash can be invested in the same way as the IRA, however, you will never have to pay taxes on the original $50,000.

I hope you have found this information helpful.

For more information, click to read more about spousal maintenance.

Please contact Chris A. Spofford Family Attorney with questions.