While most people refer to spousal support as alimony, Texas law uses the term “spousal maintenance.” Texas Family Code recognizes three different types of spousal support. Eligibility requirements and the duration of alimony payments depend on the type of spousal maintenance.
If you are considering a divorce or are going through one and are not sure if you or your spouse will be awarded spousal support, consult with a Waco divorce lawyer.
The Three Types of Spousal Maintenance in Texas
Texas Family Code recognizes three types of spousal maintenance, which is commonly referred to as alimony.
1. Temporary Spousal Support
One spouse is awarded financial support paid by the other spouse after a petition for divorce is filed. This is known as “temporary spousal support” and is paid while a divorce case is pending.
This type of alimony is intended to provide financial support to a lower-earning or unemployed spouse who is not able to support themselves. Temporary spousal support is commonly awarded to stay-at-home moms or dads who have not worked because they were raising children.
A Texas court will consider each spouse’s earning capacity when deciding whether or not to award temporary spousal support. Common factors that may be considered by the court include:
Each spouse’s education
Each spouse’s employment history
Each spouse’s skills and earning capacity
2. Post-Divorce Maintenance
This type of spousal maintenance is more permanent in nature though it does not necessarily mean that a spouse will receive alimony payments indefinitely.
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.
The spouse requesting post-divorce maintenance must prove any of the following conditions to qualify for this type of alimony:
The marriage lasted at least 10 years and the requesting spouse cannot earn enough to meet minimum reasonable needs;
The spouse seeking spousal maintenance has a disability that prevents them from working;
The spouse requesting post-divorce maintenance is a primary caregiver for a child with disabilities;
The requesting spouse was a victim of domestic violence while a divorce case was pending or within two years before divorce papers were filed; and/or
The spouse seeking alimony has made reasonable efforts to earn sufficient income or learn job skills to meet minimum reasonable needs while a divorce case was ongoing.
3. Contractual Alimony
Unlike the previous two types of spousal maintenance, contractual alimony is not ordered by the court. As its name implies, contractual alimony is possible as the result of an agreement between two spouses.
Typically, the agreement must state:
how much one spouse would pay to the other;
how long the receiving spouse would collect contractual alimony; and
how frequently those payments would be made.
What Factors Are Considered When Awarding Spousal Maintenance in Texas
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 spousal support.
Texas law requires the requesting spouse to prove that they have made reasonable efforts to find gainful employment or acquire the job skills, education, or training to earn a living and meet minimum reasonable needs while the divorce was pending.
Prior to awarding spousal maintenance, Texas courts consider the following factors in determining if the alimony award is warranted:
The requesting spouse’s need for spousal maintenance;
The other spouse’s ability to make alimony payments;
The financial situation of each spouse;
The education, employment history, and job skills of each spouse;
The estimated amount of time necessary for the supported spouse to acquire education or job skills to become financially independent;
The length of the marriage;
The age and physical/mental condition of the spouse requesting spousal maintenance;
Marital misconduct by either spouse during the marriage;
Whether any spouse engaged in wasteful dissipation of marital assets or destroyed community property;
Whether any spouse attempted to conceal or hide assets before or during a divorce;
Each spouse’s contributions to each other’s education, employment, and training;
Each spouse’s contributions to the home and family;
Each spouse’s separate property prior to the marriage; and
A history of domestic violence.
What is the Amount of Spousal Maintenance in Texas?
When awarding alimony, the court must also decide how much the supported spouse can receive from the other spouse. While the amount of spousal maintenance depends on a variety of factors, it cannot exceed the lesser of:
20% of the payor’s average monthly gross income.
How Long Will the Supported Spouse Receive Alimony?
Typically, the duration of spousal maintenance payments depends on the length of the marriage. However, alimony payments will continue for as long as any of the following conditions exists:
The physical or mental disability of the supported spouse;
The supported spouse’s duties as a custodial parent of a minor child; or
Any other compelling circumstances.
When no compelling circumstances exist, the supported spouse will receive alimony payments for:
Five years if the marriage lasted less than 10 years and the payor was convicted of domestic violence;
Five years if the marriage lasted more than 10 years but no more than 20 years;
Seven years if the marriage lasted from 20 to 30 years; or
Ten years if the marriage lasted at least 30 years.
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.
Contact a Waco Divorce Lawyer
If you are contemplating a divorce or your divorce case is already pending, consult with an attorney to find out what type of alimony may be awarded in your case.