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!


Scott said...

Currently I am going through a divorce. I've been married 5 1/2 to 6 years and there are no kids and not a lot of community property. But my wife is currently unable to work (has a doctor's not) but has a recent work history as well as a good MBA degree. She and her attorney are trying to get support/maintence out of me. The house is in my name. I bought it 45 days before we got married. There is not a whole lot of equity in the house. We have alot of credit card debt. Right now I have been ordered to pay temporary suppot of $400 a pay check. This is half my pay check. Now as for the final divorce decree which has not been issued yet and a court date has not been issued. My attorney tells me that in Texas you have to have a prior conviction of family violence or be married 10 years to get support/maintence. Well I do not meet these requirements. My attorney says that Texas law is on my side and I won't have to pay support/maintence to my wife. So since your an attorney, I want to know if she has any grounds to get a court to order support out of me?

Thanks for your input.

Chris Schmiedeke said...

Your attorney is correct in the requirements to get spousal maintenance. I would get a trial date set as fast as possible to get the temporary support stopped.

Good luck.

Anonymous said...

Hello Chris,

This is a question regarding spousal maintenance. In the case of Scott, I totally agree. His wife has an MBA degree and they have no children. She is able to work for her degree allows her to gain employment.
This is my case. I have been a stay at home mother for 13years. I at one point did a in-home daycare until May 2005 due to hypothyroid and vertigo issues. So I was in business for about a year and a half. There is no skill in wiping noses and changing diapers. I did that with my children. In Sept.14,2006 while Scott posted his comment I had celebrated 15 years of marriage with my husband. There was never any indication he would walk out and leave 5 days later, then three days after that he served me with divorce papers. It was a shock and a blow to the children and me.
Instead of just going into a depressed state and feel sorry for myself, I took the necessary steps to take care of myself and children. I applied for over 30 jobs all fulltime in anything and everything I could think of to no avail. I decided that I would enroll myself in school and I am now attending Everest College in Dallas to become a paralegal. Finally, the only job that I was offered was being a Server at Cracker Barrel making 2.13/hr and tips. In just two months I made 300 dollars! Woo Hoo!
My soon to be former spouse makes over 96,000/year and has a website business (that I helped him with to gain clients). At this point the Temporary Orders are having him pay 1500.00 in child support and he is ordered to pay for the house payment and truck payment. This was done because he emptied our checking and savings account, threatened to turn off everything, water, electricity , sale the house and truck immediately etc.

This is my question: What are my chances of getting spousal support?

I am fighting to keep the house. I do not want to disrupt our childrens lives any further by moving to another city or apartment. (My spouse is trying to force me to move to Allen, which is too close to the "homewrecker".
Everything that my children know, their schools, friends, extra curricular activities are in Mesquite.)
My house payment alone is 1162.00 and Expedition payment is 757.00 and because I am getting 1500.00 in Child Support I do not qualify for state aid. I do not qualify to rent, lease, or refi my home or vehicle because I do not have work history and do not make 3 times over what it would cost to rent. I am trying to sell my truck to get a cheaper payment.
When the medical insurance stops I will not get the medication I need to keep from getting sick. My blood work needs to be done every 3 months and cost in range of 600.00. This is the other problem, I do not have family that live here in Texas. My spouse does not either. Therefore the children and I do not have a place to stay should we lose the house.
What a pickle me and my children are in.
All I have been asking for through trying to work on a settlement agreement is that he help me while I am at school. 20 months tops. This would keep our children in their home and they would have a sense of stability and normalcy while I work on becoming self sufficient. Our children are used to a certain standard of living. Working as a server will not provide this for them even with the Child Support. I am often asked the question by my spouse "Why can't you make it on 1500.00 a month?" My response is, "Why can't you? You are one, the children an I are three".
I know that I am the "Classic Case" for which the Alimony statute was written. Do I have a chance? If so, how much of a chance?
My spouse says he does not want to live in a "hubble". I told him that the children and I do not desire to live in a "hovel" either.
Your answer to my question and any advice would be greatly appreciated.
Thank you.

Chris Schmiedeke said...

Wow, that is a long one. These types of questions are very difficult to answer because I am operating off of very limited facts. The answer to every factual questions on my blog is "it depends".

It depends on other factors, it depends on the other sides versions of the facts, it depends on the judge, and it depends on a million other things.

In general, with facts similar to yours, I would say that you have a decent shot at spousal support (maintenance) if you qualify. I assume that you have been married longer than ten years.

It sounds as if you are receiving temporary spousal support, so i see no reason why the court would not continue it after the divorce. This is based on the very limited facts you have provided me.

The questions I have you have an attorney? If yes, you need to address these questions to them. If you do not, then you need to get one.

Good luck.

poorman26 said...

Hi my wife has left me and I am disabled I have a dr. note and I have only a high school education we were married 2 years and 2 months I was a stay at home dad for 2 reasons one she wanted to persue her career so I quit mine so she could cause no one was at home for her kid she would leave for weeks at A time and some one had to watch her kid I have quit 2 jobs cause of her career and know that I am disabled she has left me with nothing not even a roof over my head I am homeless I treated her like a queen and got screwed in the end that does not seem fair to me the law sounds like I have no chance for spousal maintance what do you think?

Chris Schmiedeke said...

Poorman, you may have a shot at spousal maintenance, but ultimately that is for the court to decide. Remember, it is only for three years.

Good luck.

Bryan said...

Chris - In my decree it is stated that "contractual alimony” of $1000 will be paid monthly. At the time of the divorce my income level could support this and the child support of $1500. I was laid off from the job in 2001, and shortly there after I stopped paying the $1000 contractual alimony. My ex has taken me to court 3 times for other reasons, but always includes this unpaid contractual alimony. One judge wouldn’t deal with it other than to make the arrearages of contractual alimony a judgement, however the last judge made those arrearages to be treated as child support, and ordered them paid. That judge also order wage withholding up to the 50% level. My attorney at the time, told me that what she did was not correct, and that we should appeal. I could not afford an appeal at that time. Fast forward to today: I have paid off previous arrearages to the ex and will begin paying off the balance of the contractual alimony balance this month. Needless to say the total amount paid to the ex is beyond my financial ability at this time. I would like to not pay towards this contractual alimony balance, and I would like to have the wage withholding order removed for the contractual alimony, all this without going to jail or facing any other charges. I have read and heard that what this judge did is incorrect, and that she should not have been allowed to do that. I also read and hear that going to jail for this is against the Texas Constitution. I realize this may be a bit complicated, but I cannot afford an attorney, and I am sure she will be dragging me into court soon. Any advice or information would be appreciated. Are the any sources for free legal help in a case like this? Thank you for you time.

Chris Schmiedeke said...

Bryan, that is a tough case. I think your old attorney is correct about the contractual alimony/child support issue. You cannot be imprisoned in Texas for a debt.

If you violate the order you could be held in contempt and placed in jail. You could file a writ of habeas corpus with the court of appeals and have them finally rule on the issue but that will take an attorney. Most likely that attorney can keep you out of jail as well.

But if you cannot afford an attorney I do not think this it is advisable to put yourself in a position of going to jail with no way to get yourself out.

Quite a predicament you are in. I suggest you line up some lawyers, find out their costs, and start saving your money!

Good luck.

Chris Schmiedeke said...

There is a way, have you tried working with the Attorney General's Office?

Anonymous said...

Im currently divorced. I got the house and hes telling me he can take it back in Sept of next yr. He was ordered to pay the house payments until Sept. 1 2011. That was in order for me to leave his retirement alone. If I was to get remarried would he still have to pay this

Chris Schmiedeke said...

That is impossible to say without seeing your order. However, if the home was awarded to you as your sole and separate property, then he would have no right to it.

Contact a local attorney and have them review your decree.

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Anonymous said...

I filed for Divorce in March, and just had a pretrial hearing in August. The judge ordered temporary support for my wife for 1000.00/month until December. September would mark 10 years of marriage. When the trial happens in December, will she be eligible for support because technically, we will have been married for 10 years? She has a job, income, etc.

Anonymous said...

Is there a statute of limitation on how long a spouse can go after unpaid "spousal maintenance" (both parties agreed to an amount and the court ruled that it would be treated as "spousal maintenance".