The end of a marriage is always difficult, and a divorce can be as complex as it is painful. When going through a divorce, many people wonder what factors will matter, if their marriage will be treated differently than any other marriage, or if they will get stuck making alimony payments for the rest of their lives. Some people are uncertain as to whether they are even legally married. No matter what questions and worries you have, our experienced team will help you navigate the divorce process with ease.
Most people think of alimony as court-ordered financial support that one spouse pays to their former-spouse after divorce. Under Texas law, there are a variety of spousal-support options: temporary spousal support, spousal maintenance, and contractual alimony.
Types of Support
In Texas, ‘alimony’ comes in three forms.
- The first type, referred to as ‘(temporary) spousal support,’ allows a spouse to receive financial support based on the needs, expenses, and financial obligations of the parties during the pending of the divorce. One spouse pays this support to the other until the divorce is final. Sometimes, this obligation is terminated even before then, depending on the circumstances of the case.
- The second type of spousal support is spousal maintenance. This type of financial support (like the third type) allows a spouse to receive periodic payments from the former spouse’s income after finalizing the divorce. However, the difference between this and contractual alimony is that spousal maintenance is a court-ordered payment, and it is only ordered in certain circumstances.
- The third type of spousal support is contractual (agreed) alimony, and it allows both spouses to agree to payments of financial support as part of the divorce. This type of spousal support is often an appealing option for both parties who are trying to settle their divorce because it allows for more flexibility on the amount and frequency of payments. Furthermore, this option allows one spouse to have a source of monthly income for an agreed amount of time after the divorce.
Qualifying for Court Ordered Spousal Maintenance
To be eligible to receive spousal maintenance, the seeking spouse must prove that they do not have enough income and won’t receive the property necessary to meet their minimum reasonable needs. They must also meet at least one of the following criteria:
- Be married for at least ten years, and the seeking spouse must lack the ability to earn sufficient income to provide for his or her minimum reasonable needs; or
- The party from whom the seeking spouse is requesting support from has a family violence conviction; or
- The seeking spouse is unable to earn sufficient income to provide for their minimum reasonable needs because of an incapacitating physical or mental disability; or
- The seeking spouse 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 a sufficient income to provide for the spouse’s minimum reasonable needs.
Factors to Consider
- Each spouse’s ability to provide for their minimum reasonable needs;
- 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);
- The availability and feasibility of educational advancement 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.
Limits to Support
Texas policy requires courts to limit spousal maintenance to the shortest reasonable period, and they may not order support to last longer than ten years unless there is a disability. Two factors determine the duration of spousal maintenance: disability and marriage length.
The duration of support can change if a spouse has a diminished ability 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 that psychological or physical disabilities may allow a court to extend spousal maintenance indefinitely.
Texas law may also impose statutory limits on support for marriages based on the length of the marriage. If the duration of the marriage is ten years (minimum), the requesting spouse may be eligible for up to five years of support. The spouse may also qualify for five years of support if they are a victim of family violence. If the duration of the marriage is 20 to 30 years, the requesting spouse is eligible for seven years of maintenance. For 30 or more years of marriage, the requesting spouse may be eligible for ten years of payments.
Maintenance can also end in certain circumstances. Spousal support terminates if either party dies, or if the receiving spouse remarries or begins to cohabitate with a new partner. 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). In this instance, income includes earnings from wages, overtime, and retirement accounts, and it does not include veteran benefits, or social security.
Stock & Retirement Accounts
You might be wondering if your spouse will have any claim to your stock options in a divorce. To determine the characterization of your current portfolio, you will want to gather the following information/documentation:
- Information from your employer that grants you the restricted stock or restricted stock units;
- Contact information for the plan administrator;
- The account number for the stock;
- A copy of the restricted stock benefit plan; and
- Documentation reflecting the vesting schedule for the restricted stock or restricted stocks, award date, information about the shares, and the vesting date.
In Texas, there are several options for the division of restricted stock in a divorce:
- If the stock was awarded and vested before the marriage, it is typically considered separate property.
- If the stock was awarded before the marriage but vested during the marriage, part of it is community property, and part of it is separate property.
- If the stock was awarded and vested during the marriage, all of it is considered community property.
- If the stock was awarded during the marriage but vested after the divorce, part of it is community property, and part of it is separate property.
Like stocks, retirement accounts often require an analysis because even if the plan was obtained before the marriage, the portion contributed and the interest accrued can still be considered community property.
Enforcing Support Payments
Contractual (agreed) spousal support can only be enforced as a contract. If the parties have agreed, the court may order a wage withholding order, but the court cannot make such an order if the parties have not reached an agreement. A party cannot be held in contempt for not paying contractual spousal support, but they can be liable for the amounts owed and attorney’s fees.
How Is Court Ordered Spousal Maintenance Enforced?
If spousal maintenance (‘alimony’ or ‘spousal support’) is ordered, the court can enforce the award through a wage withholding order or contempt proceedings. If the party fails to pay, they may be held in contempt or jailed. In certain circumstances, the non-paying party can be held in contempt and jailed.
In matters that involve infidelity, there is rarely a clear right or wrong side as many factors can contribute to one spouse getting involved with a paramour.
Courts generally analyze the impact of infidelity in the divorce by examining five factors: evidence, the existence and age of children, if money was spent on the affair or paramour, if the other party is seeking a ‘no-fault’ divorce, if children were exposed to the paramour, and whether or not the cheating spouse is forthcoming with the court.
Regardless of which side you’re on, you’ll want a lawyer who can effectively present your side of the story—that’s where we come in. We have years of experience successfully articulating our clients’ side of the story and developing appropriate legal strategies to support them.
The standard to which one must prove infidelity is by a burden of Clear and Convincing Evidence. The Clear and Convincing Evidence Standard is a standard that dictates that the evidence offered has a high probability for truth. Depending on the circumstances of the affair, testimony that the spouse was unfaithful may not be enough to meet this standard. Pictures and documentary evidence can be useful, but not all documentary evidence is seen as useful, nor does physical evidence always exist.
Some spouses choose to hire private investigators to obtain evidence of infidelity. Generally, a private investigator must be disclosed. There are other legal means to collecting evidence that can help to prove an affair (like obtaining financial records and phone records), so you should consult with an attorney experienced in handling these delicate matters strategically and in a way that helps your position in court.
Existence & Age of Children
If there are children involved in a divorce, the court may make orders for the protection of the children and make determinations about the cheating spouse’s parenting based on whether the cheating spouse has prioritized their affair over parenting. The court wants to ensure that children are not exposed to paramours, as this may have a negative impact on the child. If the paramour has been in the presence of the children, especially at the objection or lack of input from the other spouse, the court may issue a restraining order and require therapeutic involvement.
The court will also consider the character and background of the paramour to determine the judgment of the introducing spouse. Introducing children to a paramour who has a criminal history or issue with drugs, alcohol, or domestic violence, may significantly impact the parent’s credibility.
Spending Money on an Affair or Paramour
Knowing if the cheating spouse spent marital assets on affairs is essential. If a spouse spends community property on their paramour—and the expenses or gifts are provable—then the faithful spouse may be entitled to a disproportionate share of the community estate or other compensation. If the standard of proof is met, the court will reconstitute the community estate, (meaning the cheating spouse’s half of the marital estate will be used to ‘pay back’ the marital estate).
In Texas, divorces are granted based on reasons or ‘grounds’ for the divorce. If it is proven that either spouse committed adultery, that spouse may be found at fault in the dissolution of the marriage. In a No-Fault Divorce, neither party is held responsible. Additionally, even if the spouses were living apart at the time the affair began, Texas does not recognize legal separation, and the actions of the cheating party will still be considered adulterous.
Spouses often attempt to hide their affairs from their partner, so it should not be surprising that they may try to deceive the court or even their attorney. Some people are embarrassed by their affair, want to maintain innocence so their spouse won’t punish or resent them for their actions, or think they are protecting their spouse from pain by denying the truth. Fortunately, we are skilled in analyzing facts and indicators that infidelity or financial infidelity exist.
If you are the spouse that committed adultery, you must be honest about the affair. If caught, failure to be forthcoming can result in an unfavorable outcome in your case, and it may negatively impact your credibility.
The court’s decision in Obergefell v. Hodges, 135 S. Ct. 2071 (2015), 2015 U.S. LEXIS 4250 (June 26, 2015), holds that “the right to marry is a fundamental right inherent in the liberty of the person, and under… the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty… same-sex couples may exercise the fundamental right to marry.” Now the law recognizes same-sex marriages as being equal to heterosexual marriages, and legal disputes receive the same treatment.
Simply put, there are no legal differences between a heterosexual divorce or a homosexual divorce. However, these divorces can be complicated by other legal factors such as instances when an informal marriage may exist before ratification of the same-sex marriage. At Walters Gilbreath, PLLC, we understand that—although they receive the same treatment—same-sex marriages and divorces require an in-depth understanding of the nuances that can affect or otherwise complicate cases. If you are in such a marriage and want a divorce contact us, and a member of our team will guide you every step of the way.
Informal Marriage (Common Law Marriage)
An informal marriage exists when partners consider themselves married, but did not have a legal ceremony or otherwise enter into a marriage legally. An informal marriage requires that you and your partner ‘hold yourself out’ as married. ‘Holding yourself out’ means that you both present as married by taking actions such as filing a joint tax return with a married status, referring to yourselves as married when speaking with others, and insuring your partner as your spouse.
Proof of an Informal Marriage
According to the Texas Family Code, Section 2.401, an informal marriage is one that exists if the following factors are present:
- A declaration of their marriage has been signed; or
- The couple agreed to be married, and after the agreement they lived together in this state as husband and wife, and represented to others that they were married.
If you separated and plan on proving a marriage, you must do so before the second anniversary of the separation. If you try to prove the marriage’s existence after the second anniversary of the separation, the court presumes that the parties did not agree to be married. Even if the above requirements are met, an informal marriage cannot exist if a party is presently married (formally or informally) to a person who is not the other party to the informal marriage, or if a party is under 18 years of age.
It is essential to clarify the status of an informal marriage because once an informal marriage is established, it will affect property distribution if and when a couple ever decides to divorce.
Challenging an Informal Marriage Claim
Sometimes one party files for divorce, and the other party does not believe they entered into an informal marriage. In this instance, the party asserting the informal marriage claim would need to prove the existence of the marriage.
The absence of a marriage certificate does not always indicate the absence of a marriage. Our team has extensive experience contesting and proving informal marriages, so if you need to challenge a claim or prove that a marriage exists, don’t fight it alone.