Alimony can be a difficult legal concept to understand. Most people think of alimony as court-ordered financial support that one spouse pays to the former-spouse after the divorce. However, under current Texas law, there is no such thing as court-ordered alimony. Under Texas law, alimony is referred to as temporary spousal support, spousal maintenance, or contractual alimony. Some common questions regarding alimony are what it is, who gets it, how it is calculated, how it is enforced, and what are the differences between the three types of alimony. This article will answer the common questions stated above.
In Texas, 'alimony' comes in three forms.
Under the Texas Family Code Chapter 8, spousal maintenance is defined as a award in a divorce, annulment, or suit to declare the marriage void from the future income of one spouse for the support of the other spouse. Unmarried cohabitants are not eligible for spousal maintenance payments. The purpose of spousal maintenance is to provide temporary support for a spouse who lacks the ability to support himself or herself. However, it is important to stress that spousal maintenance can only be ordered in limited circumstances.
To be eligible for spousal maintenance a requesting spouse must show that he or she lacks sufficient property to provide for his or her minimum reasonable needs. Click here to read more about these factors. It is important to note that unless the spouse seeking maintenance has a physical or mental disability, by statute it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in seeking suitable employment or developing necessary skills to become self-supporting while the spouses are separated and the divorce suit is pending. Proof that one spouse has been looking for employment could be resume(s), proof of job interviews, proof of enrollment in school, etc.Quick Tip : If there is a disability that occurs after the divorce is final, this is not a circumstance in which a Texas court would allow for spousal maintenance.
If a Texas court determines a former spouse is eligible for spousal support, the court then determines the amount and duration of the support by considering certain relevant factors.These relevant factors include:
Under Texas policy, courts are required to limit spousal maintenance to the shortest reasonable time period and may not order maintenance to last longer than ten years unless there is a disability. It is important to understand the duration of spousal maintenance is determined by two factors. Spousal maintenance can be ordered indefinitely if the spouse is unable to work due to a physical or mental disability or if the spouse seeking support is the caretaker of a child with a physical or mental disability. It is important to note a mental or physical disability allows a court to extend spousal maintenance indefinitely, and there is no duration limit for spousal maintenance.
The second type deals with the length of the marriage. Under Texas law there are statutory limits on duration on these types of payments. If the duration of the marriage is ten years, the requesting spouse is eligible for up to five years of support. Further, the spouse is eligible for five years of support if the spouse is a victim of family violence. If the duration of the marriage is twenty to thirty years, the requesting spouse is eligible to seven years of maintenance. For 30 or more years of marriage, the requesting spouse is eligible for the possibility of ten years of payments.
In addition, it is important to note maintenance can be terminated in certain circumstances. Spousal maintenance terminates on the death of either party or the new marriage or cohabitation of the spouse who receives maintenance.Under Texas law there is a limit to the amount of spousal maintenance a court can order. A paying spouse cannot be obligated to pay more than $5,000 or 20% of his or her income (whichever amount is less). Income included in this amount is everything one can think of such as wages, overtime, retirement, however income does not include veteran benefits, or social security.
There is a distinction between enforcement of a spousal maintenance and enforcement of contractual alimony. Unlike spousal maintenance and temporary spousal support, contractual alimony cannot be enforced by contempt. Spousal maintenance can be enforced by wage withholding orders while contractual alimony cannot, unless the contract in the divorce decree specifically provides for this. Furthermore, once contractual alimony is finalized, the provisions in the final decree are enforceable under Texas contract law.
Under contract law in Texas, contractual alimony cannot be modified the same way as spousal maintenance. Spousal maintenance can be modified by to either terminate or reduce payments by a requesting party. However, the requesting party must show since the divorce decree has been entered there has been a substantial and material change in circumstances, whereas contractual alimony can only be modified by the agreement. Some contractual spousal support agreements allow for modification through written consent of both parties, (i.e. a new contract).
As discussed above, spousal maintenance can be enforced two ways, either court ordered contempt or a money judgment. In addition, there are certain defenses available to spousal maintenance that are not available for contractual alimony. For example, under Texas law for there are a number of defenses available for spousal maintenance such as: the spouse paying support lacked the ability or property to make payments, or is unable to borrow funds and has no other financial means to make such maintenance payments. However, these defenses are not available for contractual spousal support, and the only defenses available are modern day contract defenses. If a spouse has not paid on the contractual alimony the spouse can sue to enforce the contract.