Spousal Maintenance in the State of Texas December 3, 2013

In the media, we often see stories about high profile divorces involving actors, professional athletes, and leaders of industry. Those figures of pop culture many times find themselves paying large amounts of alimony to their ex. In the early 1990’s Kim Richards, former teen star and now a regular on Bravo TV’s Real Housewives of Beverly Hills, entered into a divorce settlement in which her husband agreed to pay her $23,000.00 per month for the rest of her life or until she remarries. In Texas, court-ordered alimony, or spousal maintenance as it is referred to here, is much more limited in both amount and duration. It is extremely rare for spousal maintenance amounts to be as large as in the case of the Housewife, and when the amounts are this large, they are decided by agreement of the parties not by court order.

In the State of Texas, a family court may order one spouse to provide financial support to the other spouse after divorce. Here, spousal maintenance is designed to provide a lower income spouse with money for living expenses for a limited period of time. In Texas, unlike child support, spousal maintenance is not based on a simple mathematical formula. Spousal maintenance is not intended to be punitive, nor is it intend to ensure that the spouse receiving maintenance is able to maintain a certain standard of living. Rather, spousal maintenance in the State of Texas is intended to provide for the spouse’s minimum reasonable needs.

Eligibility to Receive Spousal Maintenance

Not every divorce litigant is entitled to receive spousal maintenance. In Texas, eligibility for spousal maintenance is limited to three major categories. Each of these categories applies only to a spouse who cannot provide for minimum reasonable needs.

Domestic Violence

A spouse who may receive spousal support when the other spouse has been convicted or place on deferred adjudication of an offense constituting family violence. The act of family violence must have occurred during the marriage. The act of family violence must be against the spouse or the spouse’s child. The offense must have occurred within two years before the date that the divorce was filed or while the divorce suit was pending. Again, eligibility for spousal maintenance is contingent on the spouses inability to provide for minimum reasonable needs

10-Year Marriage

When the parties to the divorce have been married for at least ten years, a spouse may be eligible for alimony if that spouse is unable to provide minimum reasonable needs.

Disability of the Spouse

If the spouse has a physical or mental disability which leaves her unable to earn sufficient income to meet her minimum reasonable needs, that spouse may be entitled to maintenance.

Disability of a Child

A spouse may be entitled to maintenance if the spouse is the primary care taker of a child (of any age) born of the marriage, the child requires substantial care and personal supervision due to a physical or mental disability, and the spouse is unable to earn sufficient income to provide for her minimum reasonable needs due to the amount of time or money spent caring for the child.

The Amount of Spousal Maintenance

The Court decides the amount of spousal maintenance that should be paid by determining the spouse’s minimum reasonable needs. The term “minimum reasonable needs” is not defined by the Texas Family Code. Therefore, to calculate the amount of spousal maintenance, the court will generally look at a number of case-specific factors including the expenses of the spouse, the amount/value of property owned by the spouse, and the monthly income of the spouse.

Expenses

The Court will first determine the minimum reasonable needs by looking at the living expenses of the spouse. Those living expenses may include mortgage or rent payments, utility bills, car payment, insurance, gas, groceries, credit cards, child care, clothing, food, and out-of-pocket medical expenses.

Property Available to the Spouse

Next, the Court will look at the property available to the spouse to determine whether there is there is sufficient property to pay the spouses expenses. The property may be income producing property such as a rent house or an annuity. The property may be cash that can be spent on living expenses, liquid assets (stocks, bonds, etc.) that can be easily converted to cash and spent on expenses, or non-liquid assets that can be sold less easily to pay expenses (ex: down sizing a house).

The Spouse’s Income

Finally, the Court will consider the amount of the spouse’s monthly income and whether it is sufficient to provide for the minimum reasonable needs. This seems like a pretty straight forward proposition.

The simplistic view would be to state that the amount of spousal maintenance equals minimum reasonable needs minus income. The real battle is in determining the amount of the minimum reasonable needs and the amount of income/assets available for covering those needs. There are a number of additional factors for the court to consider such as each spouses’ financial resources, contributions of the receiving spouse to the paying spouse’s career, separate property of each spouse, length of the marriage, age, education, employment history, homemaker contributions, and diligence in seeking employment.

Cap on Spousal Maintenance

After the Court calculates the amount of spousal maintenance, it must determine whether the amount exceeds the statutory maximum. The statutory maximum is $5,000.00 or 20% of the paying spouse’s average gross income, which ever is less. If the Court determines that the amount of the calculation exceeds the lesser of $5,000.00 or 20% of gross income, the amount will be reduced.

How Long Will Spousal Maintenance Be Paid?

The Court shall limit the duration of the spousal maintenance as follows:

  • Five years if the spouses were married for less than ten years and eligibility is based upon family violence
  • Five years if the spouses were married for at least 10 years but less than 20 years
  • Seven years if the spouses were married for at least 20 years but less than 30 years
  • Ten years if the spouses were married 30 years or more

The Court must limit the duration of the maintenance to the shortest reasonable period of time that allows the receiving spouse to earn sufficient income to provide for the spouse’s minimum reasonable needs. In other words, the court can order a duration less than the maximums above and the Court can modify the duration once the receiving spouse is able to meet minimum reasonable needs

No Limits when Eligibility is Based on Disability

The Court may order maintenance for a duration greater than the maximums above, if spouse’s ability to earn income is diminished by physical or mental disability of the spouse, physical or mental disability of a child, or “another compelling impediment.” Moreover, the Court may order a duration beyond the limits above, if eligibility is based on physical or mental disability of the spouse or child, for as long as the disability continues and the spouse is unable to meet minimum reasonable needs. In other words, the Court can order maintenance for as long as the spouse or child remains disabled.

Statutory Grounds for Termination of Spousal Maintenance

Though the Court may order the payment of spousal maintenance for the maximum duration, the obligation to pay terminates upon the following occurrences:

  • Death of either party;
  • Remarriage of the party receiving spousal maintenance; or
  • Party receiving spousal maintenance is living with a significant other.

Other Types of Spousal Maintenance

This article is limited to court-ordered spousal maintenance which is paid after the divorce is final. You should be aware that there are other types of maintenance which may be addressed in future articles. Those include: 1) temporary spousal support which is paid while the divorce is pending; and 2) Contractual alimony which is paid by agreement between the spouses, usually to equalize the division of community property.

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