Alimony, which is called spousal maintenance in Texas, is a very misunderstood topic. If you’re facing a divorce and are expecting alimony, having a better understanding of what’s involved can help you manage your expectations moving forward.
Every divorce case is unique, and alimony must be considered in the context of the marriage itself, which makes having the skilled legal representation of an experienced Round Rock divorce attorney backing you up the best plan.
Alimony Isn’t a Given
Alimony is never a given in a Texas divorce, and the court has considerable discretion in the matter. If divorce leaves you unable to cover your own reasonable needs in relation to the standard of living achieved during your marriage, alimony may be ordered.
For example, if you’re facing divorce after a marriage of many years in which you set your own career aside in order to care for your shared children, keep house, and support your spouse’s career, alimony becomes more likely.
The same is true of a younger spouse who—in the face of divorce—is eager to obtain the education or job training necessary to gain financial independence but needs a reasonable amount of time to do so. However, there is a lot of gray area in between.
After 10 Years of Marriage
In Texas, alimony generally doesn’t come into the picture unless the marriage lasted at least 10 years. And the longer the marriage, the longer alimony’s duration is likely to be – when applicable. While the court has considerable discretion when it comes to alimony, the standard breakdown of alimony’s duration includes the following:
Alimony that lasts up to 5 years after a marriage of at least 10 years
Alimony that lasts up to 7 years after a marriage of at least 20 years
Alimony that lasts up to 10 years after a marriage of at least 30 years
Texas Sets a Maximum Alimony Amount
The State of Texas sets a cap on alimony payments, and it’s $5,000 per month or 20 percent of the paying spouse’s gross income – whichever is less. If your spouse is a very high earner, this amount can seem paltry, but it’s important to keep in mind that it is in addition to your just and right division of marital property.
You are entitled to your equitable share of all marital assets, which includes everything either of you – or both of you together – came to own during your marriage.
Texas courts also set higher alimony amounts in certain circumstances. A prime example is when the recipient of alimony stays home to care for a child of the marriage who has special needs and requires extensive care and support.
Prenuptial Agreements
It’s important to also note that a valid prenuptial agreement with alimony terms included overrides the state’s limitations. While alimony orders can be modified in relation to a substantial change in circumstances, those set by a prenuptial agreement – also called a contractual agreement – cannot.
Proving Need
When it comes to proving your eligibility for alimony, the bar is high. You’ll need to demonstrate that you’re incapable of meeting your minimum reasonable needs in the wake of divorce.
You’ll also need to prove that you’re taking the steps necessary to gain financial independence, such as by considering your options in relation to the current job market, furthering your education, or obtaining job skills. Finally, your ex must have the means to pay alimony before it will be ordered. In other words, alimony isn’t a right.
Eligibility
Specific requirements must be met for the court to order alimony in your case.
The most common scenario is when a couple has been married for at least 10 years and divorces, leaving one spouse without the financial means to meet their own reasonable needs while the other has the financial ability to pay alimony, which will be set for a duration that allows the recipient to gain financial stability.
There are, however, other situations in which alimony is likely to apply, including:
When one spouse lacks the means to provide for their own reasonable needs and the other was convicted of or received deferred adjudication for an act of family violence that occurred during the marriage but no more than two years prior to the divorce filing or that occurred while the divorce was pending
When the recipient lacks the financial means to provide for their own reasonable needs due to an incapacitating mental or physical disability or due to the fact that they have custodial responsibility of a shared child who – due to an incapacitating mental or physical disability – requires substantial care and supervision
When a valid prenuptial or postnuptial agreement is in place that specifically addresses alimony
When one spouse is a sponsored immigrant in the U.S., which can trip the Affidavit of Support executed by the other spouse
Proving the Lack of Earning Ability
When it comes to the matter of proving that a spouse lacks the earning ability to provide for their own reasonable needs post-divorce, the court considers factors like the following:
The financial resources available to each spouse – including in terms of their separate assets – after the marital property has been divided between them
Each spouse’s level of education
Each spouse’s employment skills and overall employability in relation to the current job market
The amount of time it would take for the spouse seeking alimony to obtain the education or job training necessary to become a sufficient earner – and the feasibility of them doing so
Additional Factors that Guide Alimony Determinations
In addition to the length of the marriage, financial need, employability, and special circumstances, Texas courts take a wide range of factors into consideration when making alimony determinations, including:
Each spouse’s age and overall mental and physical health
The standard of living the couple achieved during the marriage
The contributions each spouse made to the marriage, including in terms of staying home with the children and housekeeping
The contributions the spouse seeking alimony made to the other’s career, such as by supporting them through school
Misconduct, such as if the paying spouse artificially spent down or otherwise dissipated marital assets, engaged in an adulterous affair, or treated the other cruelly
Any other factors the court considers relevant to the case
Every alimony determination is decided on a case-by-case basis, and working closely with a seasoned divorce attorney from the start is in your best interest.
The Division of Marital Property
Before the matter of alimony is determined, the division of marital property, which plays a primary role in alimony terms, must be decided. In the State of Texas, all the assets that either spouse or that both spouses together came to own during the marriage are considered marital property that is owned equally be each.
The only exceptions when it comes to assets acquired during a marriage include:
Any gifts either spouse receives in their name alone – including gifts from the other spouse
Any inheritances either spouse receives in their name alone
The pain and suffering portion of a personal injury settlement that either spouse received during the marriage
Upon divorce, marital assets must be divided in a manner that is considered fair given the circumstances, which may or may not mean equally.
Property Division Factors
The kind of factors taken into consideration when determining how the marital assets will be divided include:
Each spouse’s separate estate
The size of the marital estate
Any age disparity between the spouses
Any earning disparity between the spouses
Any income disparity between the spouses
Whether fault played a role in the dissolution of the marriage, such as if one spouse spent lavishly on an affair
The tax implications of the proposed property division
Any financial wrongdoing on the part of either spouse, such as spending down, giving away, hiding, or otherwise artificially limiting the marital assets
Each spouse’s education or business opportunities
The nature of the assets being divided
Separate Assets
Separate property refers to those assets that either spouse owned prior to marriage and kept separate throughout the marriage. Each spouse retains their separate assets upon divorce, but there are a range of circumstances that can alter the separate nature of a property. Examples include:
When separate and marital assets are commingled
When marital assets are used to bolster a separate property – or the other way around
When separate assets aren’t accounted for separately
When both spouses treat a separate asset like a marital asset
For an asset to remain separate, it must be treated as a separate property, which requires intention. Additionally, any increase in the value of a separate asset is likely to be considered marital.
For example, the value of a retirement account at the time of marriage is separate, but the amount it increases over the course of the marriage is marital. In other words, assets can be both marital and separate.
Alimony Can Be Modified after the Fact
While alimony may be ordered upon divorce for a specific amount and duration, this order can be modified if there is a substantial change in circumstances in the meantime. For example, if either ex’s income increases or decreases substantially, the alimony terms may be modified in response, but the matter needs to be addressed by the court.
Remarriage
If the alimony recipient remarries, their right to alimony ends. At this point, the newly married ex must inform their former spouse of their marriage, and the payor’s responsibility ends immediately. The court’s involvement is not required in this situation.
Cohabitation
If, on the other hand, the recipient of alimony moves in with a new romantic partner, it may or may not affect the alimony order. Under these circumstances – and those involving other substantial changes rather than remarriage – the burden of proof lies with the spouse attempting to modify the alimony terms.
To affect alimony, the ex who pays maintenance must prove that the recipient is living with their new partner in a permanent capacity, which very generally means that it’s a long-term arrangement. Factors like the following can help establish this requirement:
The amount of time the new couple has lived together
Whether or not the new couple has pooled their resources, commingled their finances, or intermingled their assets
Whether or not the new couple has joint accounts, loans, or credit cards
Whether or not the new couple has made future plans together, such as by purchasing a home or having children
Whether or not the new couple owns property together
Whether or not the new couple holds themselves out to others as a married couple, such as by wearing wedding rings or calling each other husband and wife
In other words, if the couple acts like a married couple, the court could end the alimony order, but that decision must come from the court.
FAQ
How likely am I to receive alimony?
Alimony determinations must be made in accordance with the unique circumstances that apply, but if the following are true of your divorce, your chances of receiving alimony are increased:
Your marriage lasted at least 10 years.
Your divorce will leave you without the means to cover your own reasonable needs while your spouse has the financial ability to help.
Is permanent alimony a possibility?
Generally, alimony is set for a short or medium term that allows the recipient to gain greater financial independence through education or job training. If, however, the maintenance is based on the recipient’s disability or their need to care for a child of the marriage with a significant disability, the alimony order may not have an end date.
What if I remarry?
If you receive alimony payments from your ex and you remarry, it’s your responsibility to let them know your marital status, which will end their spousal maintenance obligation to you.
Seek the Legal Guidance of an Experienced Round Rock Divorce Attorney Today
Brett Pritchard at The Law Office of Brett H. Pritchard is a focused Round Rock divorce attorney with a wealth of experience helping clients like you obtain favorable alimony terms, and he’s here for you, too.
Learn more by contacting or calling us at 254-781-4222 and scheduling a free consultation today.