Thursday, September 14, 2006


maintenance (a.k.a. spousal support) in Texas divorces and can I get me some?

Okay, today we are going to talk about spousal maintenance or spousal support. This issue comes up all the time in divorce situations. It is not a direct question like “can I get spousal support” as much as it is “how can I survive if I leave my spouse”.

Maintenance is defined in §8.001 of the Texas Family Code as an award in a divorce, annulment or suit to declare a marriage void of periodic payments from the future income of one spouse for the support of the other spouse.

Maintenance is not designed to divide property, allocate debt, or to punish a party, it is simply a band aid designed to help a spouse (after divorce) to get on his/her feet. For that reason, the legislature has made it applicable in only certain situations and for a limited period of time.

Under §8.003 of the Texas Family Code, the court may order maintenance only if:
  • The spouse from whom payment is sought was convicted (including deferred adjudication) for a criminal offense involving family violence AND the offense occurred within two years of the date that the request for divorce, annulment, etc…was filed OR it occurred while the divorce was pending; or

  • The marriage was in excess of 10 years AND

  • The spouse seeking support lacks sufficient property, including property divided by the Family Code (i.e. by the judge) to provide minimum reasonable needs, AND

  • Is unable to support himself/herself because of a physical or mental disability OR is the custodian of a child with a physical or mental disability that requires that parent to stay home with the child (of any age) OR the spouse lacks the earning ability in the labor market to provide the minimum needs for that spouse.
Payments will be limited to the shortest amount of time to get that spouse on his or her feet or to be able to meet his or her reasonable minimum needs.

For a list of the factors that the court considers in answering the many questions you may be asking yourself about the requirements above, see §8.052 of the Texas Family Code.

There is a presumption AGAINST spousal support unless the spouse has a physical or mental disability or can prove to the court (thereby overcoming the presumption) that the spouse has done all they can to find suitable employment or develop the skills necessary to get that employment but was unable to find employment. This presumption also does not apply to the parent with custody of a child with a mental or physical disability as discussed above.

A court cannot order support for longer than three years, but as I stated above, is to limit it to the shortest amount of time possible. If there is a mental or physical disability involved to the spouse or the child of the spouse, the time is indefinite and the court has discretion in the length of time the court will order support. Ay disability is subject to future court review and must continue during the time the support is provided.

How much can the court order? The court cannot order more than the lesser of $2,500 or 20 percent of the spouse’s average monthly gross income. I will not get into how that is calculated here. If you are in a situation where you need to calculate this, call a lawyer.

When does it end? When either spouse dies, when the parties remarry (yeah, right), or if the party receiving support COHABITS WITH ANOTHER PERSON IN A PERMANENT PLACE OF ABODE ON A CONTINUING CONJUGAL BASIS. I capitalized this because it is the one that will arise most often. What it means would have to be determined on case by case basis by the judge. There are probably a million different scenarios with a million different answers to this one.

There are two additional types of alimony or support that I did not discuss above. The first is temporary support that the court orders while the case is pending. Anybody can qualify for this, provided that the evidence is there to overcome the presumption discussed above. So, a person married less than 10 years can qualify for temporary support while the case is pending, but will not get spousal support after the divorce (unless some other provision qualifies them for it).

The other type is called contractual alimony and involves an agreement or “contract” between the parties to certain future payments to a spouse after the divorce. Bottom line, regardless of the length of marriage, etc…the parties are free to agree on contractual alimony under any terms they like. The big difference between this and the spousal maintenance or support discussed above is the enforceability of the order. Without getting too detailed, contractual alimony is considered a debt, and in Texas you cannot be put in jail for failure to pay a debt. Spousal maintenance or temporary spousal support is not a debt and therefore the spouse not paying as ordered could potentially be put in jail for contempt of court. If you need further analysis of this point, you really need to contact a lawyer because it is somewhat of a tricky issue in determining which you have or are thinking of agreeing to.

Until next time....

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!