While most people refer to spousal support as alimony, Texas law uses the term “spousal maintenance.” Spousal maintenance payments are meant to help the spouse who experiences a monetary downturn with divorce find his or her financial bearings.
The Texas Family Code recognizes four different types of spousal support. Eligibility requirements and the duration of alimony payments depend on the type of spousal maintenance.
In a Texas divorce, spousal support is by no means a guarantee, and you will need to file a request to receive it. Support can be awarded temporarily during the pendency of your divorce, or it can be awarded as post-divorce payments. Spousal support can be determined via mediation, or it can be awarded by the court.
If you are entitled to alimony, it is important to seek it because the court will not consider alimony unless it is requested, and you can rest assured that your divorcing spouse is not going to offer it.
Because your financial rights and your future hang in the balance, exploring the matter of alimony with an experienced Waco divorce attorney early in the divorce process is strongly advised.
The Basics of Spousal Maintenance
In the State of Texas, alimony is called spousal maintenance, but the meaning remains the same. Alimony is a financial matter that is separate from the division of your marital property, and it is intended to help offset the financial disadvantage one spouse experiences upon divorce.
Spousal maintenance amounts to a monthly payment that can, upon divorce, be awarded to a spouse who lacks the financial means to meet his or her minimum reasonable needs. Alimony is generally temporary and is intended to act as a bridge toward financial independence for the recipient.
The most salient point about alimony is that it is not automatically a part of every divorce. However, alimony may be awarded if you or your spouse requests it, and the court subsequently determines that the requisite financial need is there.
Alimony is reserved for very specific situations, and the amount and duration of alimony are restrictive. Better understanding the basics of alimony will give you a better idea regarding whether or not you qualify and, if so, the parameters that are likely to apply to your situation.
The Four Types of Spousal Maintenance in Texas
Texas Family Code recognizes four types of spousal maintenance (commonly referred to as alimony).
1. Temporary Spousal Maintenance
While you may correlate alimony payments with the period after your divorce, there is also what is known as temporary alimony. This is spousal support that is paid while your divorce is pending.
One spouse is awarded financial support paid by the other spouse after a petition for divorce is filed. This type of alimony provides support to a lower-earning or unemployed spouse who can’t support themselves in the interim before a divorce is finalized. Temporary spousal support is commonly awarded to stay-at-home parents who haven’t been working because they were raising children.
If you need temporary spousal support, you and your divorcing spouse can come to an agreement, or you can request the court’s intervention on the matter.
Living Situations and Temporary Spousal Maintenance
The fact is that divorce is often a lengthy process, and many couples cease living together as they move through it. If this is the situation in which you find yourself, you will still have bills coming in and will still need to address the cost of daily living. This can be very difficult to accomplish without an adequate income.
If, during this period, you and your spouse continue to live together and continue to address your financial obligations the way you did when you were married, temporary spousal support probably will not be necessary.
However, if your divorcing spouse refuses to budge on finances, it might be time to seek temporary spousal support, allowing you to run your home and continue paying your bills while your divorce proceeds. Consider the following examples of divorce-related expenses:
You’ll need to retain an experienced divorce attorney. (Is It Time to Call a Texas Divorce Attorney?)
If you need to find a job, you may need to invest in a career wardrobe.
You may incur additional daycare expenses while you attend to important divorce matters.
Temporary Spousal Maintenance Hearings
If you think you are going to need a temporary spousal maintenance hearing, you can request one upon filing for divorce. This temporary support is intended to help you make ends meet while your divorce terms are being negotiated.
It is important to note that this support is about more than just helping you pay your bills—it can help protect you and your soon-to-be-ex’s credit and assets. In Texas, you are married until you are divorced, which means that, while your divorce is pending, any financial troubles you face also threaten your divorcing spouse, and vice-versa.
Ensuring that you have the funds you need to make it to the other side of your divorce greatly reduces the chance that the financial limbo of the divorce process will wreak financial havoc on your post-divorce future.
2. Post-Divorce Spousal Maintenance
Unlike temporary spousal support, which is paid to one spouse while a divorce case is pending, post-divorce maintenance is awarded by the court after a divorce case is finalized. This type of spousal maintenance is more permanent in nature, though it does not necessarily mean that a spouse will receive alimony payments indefinitely.
Post-divorce alimony is typically reserved for divorces stemming from long marriages, for exes with physical or mental disabilities, or for divorces involving children with special needs.
3. Contractual Spousal Maintenance
Unlike the previous two types of spousal support, contractual spousal maintenance is not ordered by the court. As its name implies, contractual alimony is an agreement regarding alimony between two spouses (although it must be approved by the court in your final divorce decree).
Often, contractual alimony is based on a previous pre- or post-nuptial agreement, or what the court likely would have ordered had the couple required its intervention. Typically, the agreement must state the following conditions:
How much one spouse will pay to the other
How long the receiving spouse will collect contractual alimony
How frequently payments will be made
If you and your divorcing spouse are able to come to terms regarding alimony—both its amount and duration—this will guide your alimony terms. However, if you are not in agreement, you can turn to your respective divorce lawyers to help you negotiate mutually acceptable terms.
Failing this, you can turn to mediation in an attempt to find middle ground. Once you have exhausted every avenue of negotiation, however, you will need to turn to the court to decide on your behalf.
4. Rehabilitative Spousal Maintenance
Often, the spouse who is in need of financial support is expected to become more financially independent, and, as such, rehabilitative alimony is awarded. The duration of rehabilitative alimony is intended to give the payee time to acquire the skills, training, and education necessary to support himself or herself financially.
There are many options when it comes to petitioning for spousal maintenance. Contact a Waco divorce lawyer to find out which option will be the most beneficial in your situation,
Awarding Spousal Maintenance in Texas
While many divorces do not address the issue of alimony, it can be a very relevant financial tool in others. There are specific backstories that strongly support alimony in a divorce.
For example, you may have worked throughout the early years of your marriage to put your spouse through graduate school and then focused on running the house and caring for the kids while your spouse grew his or her professional career.
You may have sacrificed your own college education for your spouse’s or given up your career to help your spouse develop his or hers. Any one of these is an instance in which alimony may be deemed appropriate, giving you a viable option to help offset the economic downturn you will no doubt experience upon divorce.
Requirements for Spousal Maintenance
Under Texas Family Code § 8.053, the general presumption is that spousal maintenance is not warranted unless one of the spouses requests alimony and can prove the need for it.
In order to be awarded alimony, it is necessary to show that you will not have enough property (after the division of marital property), skills, experience, or education necessary to earn income to adequately meet your reasonable needs.
Texas law requires the requesting spouse to prove that, while the divorce was pending, they made reasonable efforts to find gainful employment or acquire the job skills, education, or training to earn a living and meet minimum reasonable needs.
Alimony is highly specific to the situation at hand, which means that there is no guarantee that you will receive alimony upon divorce. In order for the court to order alimony in the State of Texas, one of the following four requirements must apply:
The marriage lasted at least 10 years, and the requesting spouse lacks sufficient property and assets or cannot earn enough to meet minimum reasonable needs.
The requesting spouse has a physical or mental disability that prevents them from earning an income that is sufficient to meet their reasonable needs.
The requesting spouse is a primary caregiver for a shared child with serious physical or mental disabilities.
The requesting spouse or a child of the marriage was a victim of domestic violence while a divorce case was pending or within two years before divorce papers were filed.
The bar for eligibility is fairly exacting.If you meet the necessary standard, the court can order spousal support. If you qualify for alimony, the court will then determine the amount and duration of the payments—both of which will be specifically tailored to your unique circumstances.
Duration and Amount of Spousal Maintenance
Even if you are deemed eligible for alimony, the court will consider a variety of other important factors before actually awarding it. Further, if spousal maintenance is awarded, the court will take the same factors into careful consideration when determining the amount and duration of your spousal maintenance payments.
How to Determine Spousal Maintenance
The court’s spousal maintenance calculation process is quite specific to the divorce in question because judges take many factors into consideration. Here are just a few of the situations that can influence your spousal maintenance case:
The requesting spouse’s need for spousal maintenance
The other spouse’s ability to make spousal maintenance payments
The financial situation of each spouse after the marital property is divided
The education, employment history, earning capacity, and job skills of each spouse
The estimated amount of time necessary for the requesting spouse to acquire education or job skills to become financially independent
The current job market and the kinds of jobs available to both spouses
The length of the marriage
The age and physical and mental condition of the spouse requesting spousal maintenance
Whether either spouse engaged in wasteful dissipation of marital assets or destroyed community property
Whether either spouse attempted to conceal or hide assets before or during a divorce
Each spouse’s contributions to each other’s education, employment, and training (or anything else that increased earning power)
Each spouse’s contributions to the home and family
Each spouse’s separate property prior to the marriage
A history of domestic violence
The requesting spouse’s efforts to secure employment while the divorce is pending
The impact of child support payments for both spouses
The cost of child case for spouses returning to the workforce
Other factors can be found in Texas Family Code § 8.052.
A job market analysis expert can be ordered by either spouse in order to clarify the current job market and potential salary ranges of the alimony recipient – in defense of either’s stance on the matter of alimony.
It’s a lot to consider, but an experienced divorce attorney can help you get a better handle on this important matter. Have more questions? Schedule a FREE initial consultation with one of our Texas-based attorneys.
The Amount of Spousal Maintenance in Texas
The amount of spousal maintenance awarded depends in part on the minimum reasonable needs of the requesting spouse. Calculating minimum reasonable needs can be a complicated process, and these needs are calculated on a case-by-case basis. In other words, no two cases are alike.
Typically, the court will look at the recipient’s projected post-divorce budget (in relation to his or her standard of living during the marriage). The judge will consider the recipient’s financial needs and the payor’s financial ability to offset those needs while providing for his or her own financial needs.
When awarding spousal maintenance, the court must also decide the maximum amount the supported spouse can receive from the other spouse. Under Texas Family Code § 8.055, the maximum amount of spousal maintenance is no more than $5,000 or 20% of the payor spouse’s average gross monthly income, whichever is less.
Gross income in this capacity refers to all the following:
All income earned in the form of wages or salary and any other compensation paid for personal services rendered, including overtime, commission, tips, and bonuses
All income from self-employment
All income from interest, dividends, and royalties
All rental income after deductions are made for the mortgage payments and operating expenses (depreciation and other non-cash items are not included in these deductions)
Separate property—especially if this can be liquidated easily
All other income received, including retirement benefits, pensions, severance pay, trust income, annuities, interest from notes (regardless of their source), maintenance, alimony, gifts and prizes, capital gains, and unemployment benefits
In other words, before making any determinations regarding spousal maintenance, the judge will carefully consider the overall picture of both spouses’ assets.
Stay-at-Home Parents and the Workforce
Divorce is a financial strain for all involved, but if you are a stay-at-home parent, the financial uncertainty is that much more terrifying. There is no guarantee that you will receive alimony—or spousal support—and Texas law continues to tighten its constraints.
If you walked away from your career to raise your family and are now facing divorce, you need the skilled legal counsel of an experienced Waco family law attorney.
Your staying home to raise your family while your spouse pursued his or her career no doubt improved your family’s home life. However, you probably did not have the opportunity to grow your own job marketability.
Having been out of the workforce puts you at a distinct disadvantage when it comes to finding a job to support yourself post-divorce. Further, the fact that you took a break from work will likely decrease your earning potential when you do find a job.
In situations such as this, the court takes the financial imbalance into consideration and may order that your spouse pay alimony to help you achieve a more firm financial footing.
Alimony can play an important role in your financial future. For example, if your goal is to remain in your family home as the primary custodial parent after your divorce, alimony may be the only option in terms of your ability to continue paying the mortgage.
Further, alimony may be your only qualified income stream post-divorce, which you will need in order to purchase a car or a home (if staying in the family home is not an option). Alimony may also amount to the financial leg up you need to get the education, job training, or experience necessary to become more financially independent.
In other words, alimony can make a significant difference in your ability to move forward post-divorce.If you have questions or concerns about alimony, an experienced Waco divorce attorney can help.
Fault-Based Divorce and Alimony
Most divorces in Texas are no-fault divorces, which means that neither spouse is required to prove that the other’s wrongdoing was responsible for the breakdown of the marriage. Texas does, however, allow fault-based divorces.
Generally, obtaining a divorce based on fault is a far lengthier, more contentious, and costlier process, but there are situations in which seeking a fault-based divorce can work to your advantage.
If you are pursuing a fault-based divorce based on your spouse’s adultery, it can tip the balance in terms of their alimony obligation. The same is true, however, if the tables are turned and your spouse is seeking a divorce based on your infidelity, which can directly affect your alimony prospects.
It is also important to note that wrongdoing can affect the alimony outcome even in no-fault divorces. For example, if your spouse was spending lavish amounts of money on an affair they were pursuing during your marriage, the court is very likely to take this into consideration in the calculation of your alimony.
The Duration of Spousal Maintenance
Spousal maintenance, the equivalent to alimony in Texas law, does not last forever. Typically, the duration of spousal maintenance payments depends on the length of the marriage.
The idea behind most alimony awards is to allow the recipient time and financial backing to pursue the education, job skills, or experience necessary to become financially independent. However, alimony payments will continue for as long as any of these conditions exist:
The supported spouse is physically or mentally disabled.
The supported spouse is a custodial parent of a physically or mentally disabled minor child.
Any other compelling circumstances affect the supported spouse’s financial independence.
When no compelling circumstances exist, the supported spouse will receive alimony payments according to these guidelines:
For 5 years if the marriage lasted less than 10 years and the payor was convicted of domestic violence
For 5 years if the marriage lasted 10 to 20 years
For 7 years if the marriage lasted 20 to 30 years
For 10 years if the marriage lasted at least 30 years
For 10 years if the marriage lasted 10 to 20 years and the payor was convicted of domestic violence
These are the maximum time limits for spousal support in Texas. The payor or payee can request a modification of alimony at any time.
In the absence of compelling circumstances (as discussed above), judges in Texas usually award spousal maintenance until the supported spouse becomes financially independent and self-supporting.
If you are not sure what type of spousal maintenance may be awarded in your divorce case, speak with a knowledgeable attorney.
Taxes and Spousal Maintenance
When considering the matter of alimony, it is important to consider the tax implications involved in spousal support.
It used to be that the spouse who paid alimony got a tax break, and the spouse who received alimony paid tax on it. However, in 2019, the IRS did an about-face. Now the spouse who pays alimony pays income tax on the income that the alimony is culled from, and the recipient bears no tax burden for the alimony he or she receives.
Without this tax incentive, higher-earning spouses are much less motivated to willingly agree to spousal support.
Protecting Your Right to Alimony
Obtaining the alimony you need and are entitled to can be a challenge, but there are four helpful hints that can protect your right to receive alimony.
1. Do Not Quit Your Job
While your divorce is pending, continuing to keep up with a job may feel like a luxury you can no longer afford (especially if it doesn’t pay enough to make much of a difference). Further, the mental and emotional burden of divorce can make it nearly impossible to carve out time for work—especially if you are the primary custodial parent during the divorce.
Quitting your job at this juncture, however, is ill-advised. During the divorce process the court expects you to diligently search for a job that allows you to support yourself financially. Your judge will not look kindly on you putting the brakes on a job that you already have.
The court’s goal is to help you gain financial independence, so you do not want to give the impression that you are not also invested in this goal.
2. Seek the Education or Experience You Need
If you do not have a job while your divorce is pending, now is the time to prepare for this eventuality. If you do not have the education, experience, or job training you need to obtain a job that will support you financially, looking into any of the following options can help:
Going back to school to earn a degree
Gaining the experience you need to take on a specific kind of job
Learning a new skill set that would allow you to pursue a career
By demonstrating to the court that you are applying yourself to the ultimate goal of financial independence, you are doing yourself a favor.
3. Do Not Overplay Your Hand
If you are entitled to alimony and you honestly present the facts that support this claim to the court, you will have a much better chance of obtaining alimony than you will if you attempt to overstate your need. The facts are the facts. If they support your financial need, the court will take the matter into careful consideration.
4. Work Closely with an Experienced Divorce Attorney
While it is true that the facts are the facts in your case, the court is busy and needs to see the facts that make up your case in a straightforward manner that tells your compelling story effectively and efficiently.
Your practiced divorce attorney knows how to build your strongest case and how to provide the court with the relevant information it needs to make an alimony determination for you. When it comes to alimony, working closely with an experienced divorce attorney is always well advised.
Ready to move forward with your divorce? Contact the Law Office of Brett H. Pritchard to schedule your FREE initial consultation today.
Modifications to Spousal Maintenance
Our family lawyers are often asked how to modify alimony in Texas. Is it even possible to request a modification of alimony after a divorce is final? The short answer is yes.
Texas family law allows the modification of alimony. Months or years after the divorce, it is not uncommon for the payor spouse to ask the court to change the amount of spousal support that they were ordered to pay or ask to terminate spousal support altogether.
There are not many circumstances that allow either party to request a modification of alimony in Texas, but it is possible to modify alimony in any of these circumstances:
Either spouse dies.
The payee is remarried.
The payee is cohabitating with a romantic partner.
There is a material and substantial change in circumstances.
Under Texas law, the payee spouse can continue receiving alimony payments until they get remarried. If the payee is getting married again, the payor does not even have to file a motion to modify alimony. Alimony payments are terminated automatically upon the remarriage of the spouse receiving spousal support.
However, if the payor spouse is behind on alimony payments, they will still have to pay the amount of spousal support owed to their ex-spouse before alimony is terminated due to remarriage.
Texas law defines cohabitation as a romantic or sexually intimate relationship between two individuals who live together on a long-term or permanent basis.
The payor spouse has grounds to modify alimony if they find out that their ex-spouse started cohabitating with a new romantic partner. However, unlike remarriage, spousal support payments do not cease automatically.
The payor will have to file a motion and obtain a court order to terminate alimony due to their former spouse’s cohabitation with a new partner. If the payee spouse denies cohabitation, the court will require evidence to prove that he/she is actually living with a romantic partner.
Contact an experienced Waco family law attorney to help you modify alimony and prove that your ex-spouse has a romantic or sexual relationship with another person.
A Material and Substantial Change in Circumstances
Payors may also petition the court to modify spousal support if they can prove that there has been a material and substantial change in circumstances since the original order.
The following changes in circumstances may warrant a modification of alimony if they are “material” and “substantial”:
A decrease in income for the payor
An increase in income for the payee
An increase in expenses for the payor
The payor’s involuntary loss of a job as a result of being fired, laid off, or furloughed (A voluntary loss of job does not apply.)
A disabling injury or serious medical condition that affects the payor’s earning capacity
Texas courts review requests for a modification of spousal support based on a material and substantial change in circumstances on a case-by-case basis.
If the petitioner can prove that any of these circumstances have occurred since the court order was put in place, the court may grant a modification or termination of spousal support. In order to modify alimony in Texas, the party requesting a modification must file a motion in the court that issued the original alimony order.
The motion to modify alimony must be served upon the other party. The respondent will need to file an answer to the petition. After service, the parties can proceed to a hearing where each party will have a chance to present their arguments and evidence for or against the modification.
If you want to know how to modify alimony in Texas, talk to a Waco family law attorney to review your unique situation and determine whether you can change or terminate spousal support in your particular case.
Alternatives to Monthly Spousal Maintenance Payments
Alimony (called spousal maintenance in Texas) is a payment system that is intended to help offset one spouse’s divorce-based financial setback. As such, if your ex is deemed to be financially disadvantaged by your divorce and you have the financial means to help, the court may order you to pay alimony.
Typically, alimony is paid monthly for a set time, allowing your ex to establish better financial footing. However, there may be an option other than monthly payments. An experienced Waco divorce attorney can help you consider the following options and find your best path forward.
Divorce is difficult, and it generally introduces both parties to harsh financial realities. Typically, both spouses come away from divorce worse off financially. Looking at monthly alimony payments into the future can be a difficult pill to swallow, and there are a number of reasons why you may want to consider other payment options.
For one, if you experience a financial downturn of your own post-divorce, keeping up with payments is likely to be an additional burden. Further, some people simply don’t want the monthly obligation and reminder that alimony represents. Many would prefer to move forward with a clean slate. Whatever your motivation, there may be another way for you to pay alimony.
One option other than monthly alimony payments is negotiating a lump-sum payment that you make upon divorce. There are several advantages involved for your divorcing spouse:
He or she is guaranteed payment and will not need to worry about arrearages in the future.
He or she can use the lump sum to his or her financial advantage now, such as by making a down payment on a home or by investing the funds.
He or she can also benefit from the clean-slate effect.
In the end, these advantages may allow you to negotiate a slightly lower overall payment. There are financial implications involved with this approach though, so it is important to examine this payment mechanism from all angles.
Allocation of Additional Property
Another approach that bypasses monthly alimony payments is offering your soon-to-be ex additional property considerations, such as shares in a business, a larger portion of your pension, or part of any other separate financial asset.
Again, you should discuss the financial implications of this option with an experienced divorce attorney who is up to speed with your financial situation.
Contact a Waco Divorce Lawyer
Alimony concerns are serious financial concerns. Brett Pritchard at The Law Office of Brett H. Pritchard in Waco, Texas, is a dedicated divorce attorney who takes all of your divorce concerns seriously. He is committed to skillfully obtaining alimony terms that support your financial future and work for you.