This article provides an overview of the general rules that govern a spouse’s eligibility for spousal maintenance, factors affecting the award of spousal maintenance, and the amount of spousal maintenance in a Texas divorce.
No Alimony
Texas is a “no alimony” state. This is a public policy that is important to keep in mind when discussing spousal maintenance in the context of a divorce proceeding.
The key distinction between alimony and spousal maintenance is the purpose behind each. Alimony is based on the duty to support a spouse and in alimony states, that duty extends beyond termination of the marriage.
Spousal maintenance is not based on the duty to support a spouse as that duty terminates when the marriage is dissolved. The purpose of spousal maintenance is designed to help one spouse get back on his or her feet financially after a divorce.
This distinction provides the foundation for the limits and qualifications set forth below.
Qualifying for Spousal Maintenance
A court may only award spousal maintenance if the spouse seeking maintenance can establish that upon dissolution of the marriage, he or she will lack sufficient property to provide for his or her own minimum reasonable needs and that one of following four scenarios applies:
- The other spouse was convicted of an act of family violence against the spouse or the family’s minor children during the divorce proceeding or in the two years prior;
- The marriage lasted over 10 years and the spouse seeking maintenance lacks the ability to earn sufficient income to meet his or her minimum reasonable needs;
- The spouse seeking maintenance is unable to earn sufficient income to provide for his or her minimum reasonable needs due to an incapacitating mental or physical disability; or
- The spouse seeking maintenance is the custodian of a child of the marriage who requires substantial care and personal supervision because of a mental or physical disability that prevents the spouse from being able to earn an income sufficient to provide for his or her minimum reasonable needs.
Meaning of “Will Lack Sufficient Property”
This language is the first element to evaluate in determining whether or not a spouse would be eligible for spousal maintenance.
The focus of this determination is on the value and type of property the spouse owns as separate property or will receive upon dissolution of the marriage.
For example, an award of a 401k account might provide sufficient assets for a spouse to pay his or her living expenses, but a court could view the account as not liquid – meaning the spouse should not have to raid his or her retirement account to pay current living expenses.
If the spouse’s income is not sufficient to pay his or her expenses, then it is likely that the spouse will lack sufficient property.
Meaning of “Minimum Reasonable Needs”
There is no statutory definition of what constitutes “minimum reasonable needs” of a spouse. Rather, this is a fact-specific inquiry that will vary from marriage to marriage and depend heavily on a spouse’s individual income and expenses after the marriage.
If a spouse cannot earn enough income to provide for his or her expenses related to food, clothing, housing, and utilities, then the spouse likely cannot provide for his or her minimum reasonable needs.
Factors In Determining Amount of Spousal Maintenance
A court is free to consider all relevant factors when deciding upon an appropriate amount for an award of spousal maintenance.
While the legislature established the specific factors set forth below as factors that a court may consider in deciding the amount of spousal maintenance, the court is not limited to considering just these factors:
- each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering the spouse’s financial resources on dissolution of the marriage;
- 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, and the availability and feasibility of that education 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;
- 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;
- contribution by one spouse to the education, training, or increased earning power of the other spouse;
- property brought to the marriage by either spouse;
- 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 on Spousal Maintenance
There are several important limits on spousal maintenance including limits on duration and amounts.
For example, the amount of spousal maintenance that one spouse may be obligated to pay to another is limited to the lesser of 20% of that spouse’s gross income or $5,000.00.
Another important limit on spousal maintenance is that it may only be awarded for the shortest reasonable period time that allows the spouse seeking maintenance to provide for his or her own minimum reasonable needs.
In addition, with one exception set forth below, the maximum duration for maintenance payments is limited based upon the length of marriage. Payments for a marriage lasting 10-20 years are limited to 5 years. Spousal maintenance payments for a marriage that lasted 20-30 years are limited to 5 years. For marriages lasting more than 30 years, the payments are limited to a 10 year period.
This means that spousal maintenance payments may not exceed the maximum duration even if the spouse receiving maintenance payments is unable to provide for his or her minimum reasonable needs at the end of that period.
The one exception to the limited duration of spousal maintenance is if the spouse receiving the payments is disabled or has custody of a disabled child of the marriage.
Parties May Agree to Spousal Maintenance
It is important to remember that the statutory limits on what a court may award in the way of spousal maintenance only apply to court awarded spousal maintenance. The spouses are free to agree to any amount and any duration.
This may commonly be accomplished through a pre or post-marital agreement. In addition, one spouse may agree to spousal maintenance payments in a greater amount or for a longer duration than a court could order as part of an agreement resolving the divorce.
Distinguishing Spousal Maintenance Payments
It is important to distinguish spousal maintenance payments from other types of payments a spouse may receive as a result of the divorce.
For example, when children are involved, one spouse will usually be ordered to pay child support to the other spouse. Click here for more information on child support.
In addition, a court may order monetary payments from one spouse to another as a result of the property division in the divorce. Click here for more information on property division in a divorce.
If you would like to schedule a consultation to discuss your divorce case, then please send me an e-mail or send a request through my contact page.
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