Spousal Maintenance / Alimony – The Law Offices of Bobby L. Warren, PLLC

All too often, when I get calls from potential clients seeking a divorce, they refer to their assets in personal terms.

“That’s my car. I purchased it with my money.”

Of course, after having a bit of a discussion with the potential client, they soon learn that when it comes to marital property laws in Texas, there is rarely such a thing as “your car” or “your money”. Instead, once you’re married, nearly everything you acquire belongs to the community estate. That community estate belongs to both you and your spouse. While you may have a right to manage your earnings how you wish, you do not have a sole property right to them.

So when one person is the primary income earner for a household, they often find themselves paying for some of their spouse’s expenses while their divorce is pending. Sometimes they may even find that the court has ordered them to make cash payments to the other spouse for certain expenses, including attorney’s fees.

Without such provisions, stay at home moms (or dads) would find themselves unable to afford to file for divorce or obtain legal representation if their spouse decided to file for divorce. Sure, they would receive part of the community property at the end of the process when the marital estate is divided, but that doesn’t help them while the divorce is proceeding. Instead, this provides the spouse who otherwise would have little to no access to community funds an opportunity to make ends meet and to hire an attorney.

There is, of course, a limit to this. Courts in Texas have found that spouses are only entitled to enough temporary spousal support to meet their reasonable necessary expenses. It is not intended to maintain a particular lifestyle, no matter how accustomed to it they have become. It’s also irrelevant if the other spouse could afford to maintain that high level lifestyle. The court is going to look at all sources of income (including child support) available to the spouse seeking support, as well as the reasonable necessary expenses. If there is a shortfall, the court should only order the payment of an amount to make up the difference – nothing more, nothing less.

It is important, therefore, to hire an attorney who will scrupulously examine financial information statements submitted for hearings on such temporary orders to ensure that the expenses claimed are, in fact, reasonable and necessary. Without a critical eye, a party might include expenses that are not at all necessary, which could pose a substantial financial burden on the spouse ordered to pay support. On the other hand, unless a spouse asking for support is careful to put together a financial statement that is reasonable and fair, and includes all necessary expenses, they may find that they do not receive the full amount of support that they need in order to make ends meet.

During the last meeting of the Texas Legislature, new rules were adopted to define alimony benefits for spouses. In Texas, alimony is referred to as spousal maintenance.

Chapter 8 of the Texas Family Code provides for spousal maintenance under limited circumstances.

Who is eligible for spousal maintenance in Texas?

Texas law allows a spouse in a divorce proceeding to seek spousal maintenance “only if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs.” The spouse also has to demonstrate to the court one of the following:

The parties have been married for at least 10 years and the spouse applying for maintenance lacks the ability to earn income sufficient for his or her minimum reasonable needs.
The spouse seeking maintenance cannot earn enough income to meet his or her minimum reasonable needs due to “an incapacitating physical or mental disability.”
The spouse applying for maintenance is the custodian of a child (either a minor or an adult who is legally considered a child due to their condition) 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.”
The spouse asking for maintenance was the victim of domestic violence (or a child of the marriage was such a victim) which resulted in the other spouse either being convicted of domestic violence or receiving deferred adjudication for domestic violence within two years of the filing of the divorce or during the pendency of the divorce.

It is important to note that this is an exhaustive list. Courts do not have the ability to award spousal maintenance for any other reason.

How much alimony can a spouse receive in Texas and for how long can they receive it?

Once a court determines that a spouse is eligible to receive maintenance, the court will use the following factors to determine the amount and duration of those payments:

each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;

the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
the duration of the marriage;
the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
the contribution by one spouse to the education, training, or increased earning power of the other spouse;
the property brought to the marriage by either spouse;
the contribution of a spouse as homemaker;
marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and,
any history or pattern of family violence.

This list, however, is not exhaustive. The court is allowed to consider all relevant factors, including those outlined above.

Are there any limits imposed by Texas law on the duration of spousal maintenance payments?

Yes, Texas courts are limited in how large of a payment they may award and the duration of those payments.

If the spouse seeking maintenance qualifies due to domestic violence, and the spouses were married less than 10 years, the payments may last for no longer than 5 years. Also, if the spouses were married between 10 and 20 years, the duration is also limited to 5 years.

If the spouses were married between 20 and 30 years, payments may be ordered for up to 7 years.

If the spouses were married for 30 years or longer, payments may be ordered for up to 10 years.

The court, however, must limit the payments to the shortest possible duration in which it is determined that the spouse will be capable of earning sufficient income to cover their reasonable minimum needs. The one exception is that no limit is placed upon payments to a spouse who has a permanent condition or situation which prevents them from earning sufficient income to meet their reasonable minimum needs, such as a disability, the responsibility of caring for a special needs child, or some other circumstance which prevents from from taking care of themselves.

May Texas courts award any amount of money for spousal maintenance payments they wish?

No. Texas courts are limited to awarding the lesser of $5,000 per month or 20 percent of the other spouse’s gross monthly income.

If my spouse begins to live with their boyfriend or girlfriend, or if they remarry, do the spousal maintenance payments end?

Generally, yes. The court will have to have a hearing to determine whether such an event has occurred. If the court determines that the person receiving payments “cohabits with another person with whom the [recipient of payments] has a dating or romantic relationship in a permanent place of abode on a continuing basis.”

I have more questions. Who can I turn to?

Feel free to call Bobby Warren at 713-579-9702 and find out how he can become your Houston family lawyer.