Spousal Support After Divorce
By Allison Aryal
It is very scary to contemplate supporting oneself financially after divorce, especially when this has not been a concern during marriage. Whether you are coming from a marriage with shared dual incomes, or a marriage where only your spouse’s income has supported you, it is important to know what types of financial support you are entitled to in Texas, what additional options there could be for you to receive financial support from your spouse after divorce.
Spousal Maintenance
“Spousal maintenance” is a court ordered support obligation awarded in a divorce, where payments from the future income of one spouse is ordered to be paid for the support of the other spouse. Tex. Fam. Code § 8.001(1). This term is often also referred to as “spousal support.”
To be awarded spousal maintenance, the spouse requesting the support must meet the eligibility requirements outlined in the Texas Family Code. The foundational requirement, and most important one, is that the spouse seeking support must be unable to meet his or her minimum reasonable needs post divorce. Tex. Fam. Code § 8.051. Once that first requirement is met, the requesting spouse must also meet one of the following (Tex. Fam. Code § 8.051 (1-2)):
The spouse from whom support is requested is convicted of a criminal act of family violence during the marriage either during the two years prior to the suit or during the time while the divorce suit is pending; or
The spouse seeking support:
Is unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating physical or mental disability;
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; or
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.
After the court determines that the spouse asking for support is has met the above requirements, it will look to numerous relevant factors to determine the nature of the support, amount, duration, and manner of payment (Tex. Fam. Code § 8.052 (1-11)). These factors include:
Each spouse’s ability to provide for his or her own minimum reasonable needs independently;
Each spouse’s education and employment skills, and the time needed to acquire the necessary education and/or training for the requesting spouse to enable him or her to each sufficient income, and the availability and feasibility of that education and/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 child support, if applicable;
Acts by either spouse resulting in excessive spending or destruction, concealment, or fraudulent disposal of community property;
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 a homemaker;
Marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
Any history or pattern of family violence.
This list is not exclusive, and the court has the discretion to consider any relevant factors that show that the seeking spouse should be awarded spousal maintenance. The law presumes that maintenance is NOT warranted unless the spouse seeking maintenance has exercised diligence in earning sufficient income or developing the necessary skills to provide for his or her minimum reasonable needs while the divorce case is pending. Tex. Fam. Code § 8.053. Although, with evidence to the contrary, a party can overcome that presumption and show a need for support.
Calculating Support Amount & Duration
The maximum that a court may order is 20% of the paying spouse’s average monthly gross income, or $5,000.00 per month, whichever is less. Tex. Fam. Code § 8.055. The Texas Family Code defines in great detail what is and what is not included in “gross income” for purposes of calculating spousal maintenance. Tex. Fam. Code § 8.055 (a-1). It is important to remember that is the maximum amount a court can order and not a required amount; spouses are free to agree an amount that differs from this calculation.
The length of time a spouse may receive spousal maintenance depends entirely on how long the parties were married. A spouse may receive maintenance for a maximum time period as listed below, but only if they meet the necessary requirements (Tex. Fam. Code § 8.054 (1)-(2)):
Maintenance for 5 Years
The spouses were married for less than 10 years, but the paying spouse was convicted of family violence during the two years prior to the divorce suit or while the suit was pending, or
The spouses were married for at least 10 years but not more than 20 years.
Maintenance for 7 Years
The spouses were married for at least 20 years but not more than 30 years.
Maintenance for 10 Years
The spouses were married for 30 years or more.
The law requires the court to limit spousal maintenance to the shortest reasonable period that will allow the seeking spouse to meet his or her minimum reasonable needs, so it is important to remember that the above time frames are simply the maximum amount allowable under the law, and not a mandatory time frame in all situations. Tex. Fam. Code § 8.054 (a)(2).
Alimony
While Texas law does not entitle anyone to receive alimony, it leaves open the possibility for parties to agree to include alimony in their divorce settlement. As such, alimony is defined in Texas as a contractual agreement between spouses whereby one party pays the other a fixed amount of money for a duration of time post-divorce.
Since each couples’ situation is unique, Texas law allows for parties to choose if an alimony obligation is right for them or not, without legally requiring alimony to be part of a divorce. When spouses agree to include alimony, though, they have a lot of flexibility in what the alimony will look like for them. There are no eligibility requirements to meet, no cap on the amount, and no limit on duration. Since alimony is only allowed by agreement and is not included in the Texas Family Code, it is only enforceable as a contractual obligation.
While Alimony and Spousal Maintenance are established by different means and have different requirements, each has its place in helping partners to continue to support each other post-divorce, albeit in different ways.
If you believe you are eligible to receive spousal maintenance and have questions, or you and your partner have discussed alimony as an option, schedule a consultation with Allison Aryal to discuss your options and see how best she can help.
