It is a relevant question to want to know the state of alimony in Texas. For many years, Texas did not even have alimony. However, in recent years Texas introduced the concept of post-divorce spousal support after the 1995 state legislative session. As a result, you and anyone else going through a divorce have an opportunity to ask for spousal maintenance an into force trial. However, you need to know the availability of those payments to you based on your circumstances. In today’s blog post, we’re going to walk through what alimony or spousal maintenance is and how it could apply to your case.
For many years, most people believed that alimony worked against our state’s ethos and public policy. Not only is there a broader conception of Texans as being self-sufficient and therefore against ideas of spousal maintenance, but the Community property system is designed in part to alleviate the need for ongoing spousal maintenance. As a result, state legislatures or hesitant to impose spousal maintenance requirements or even the possibility of special maintenance in divorce cases. However, Texas became the last of the 50 states to pass legislation making spousal maintenance legal.
In Texas, you need to be aware of two types of spousal support after a divorce. The first is contractual alimony, and the second is special maintenance. Why you may have heard of both of these concepts referred to as alimony in the past, the reality is that both are distinct from one another and we would be best served to talk about the differences between the two in which of the two applied to you and your circumstances.
Spousal maintenance compared to contractual alimony.
Alimony, as it’s known for tax purposes and generally across our country, is a cash payment of support made from one ex-spouse to another as required by a divorce decree. Under this definition, all alimony that you receive in Texas- whether contractual alimony or spousal maintenance- will be treated as alimony for tax purposes, just as it is in every other state in the country. However, between contractual alimony and spousal maintenance, there are two different meanings and ways of having these ordered by a divorce decree.
Even before 1995, you and your spouse would have been able to have “alimony” contained in your final decree of divorce. The difference is that only contractual alimony was allowed under a settlement out of court that you and your spouse would reach together for one of you to pay the other support after the divorce concluded. Whereas Texas had prohibited alimony under prior Constitutions, these were settlement agreements that you made with your spouse outside of court and did not violate this prohibition. For all intents and purposes, these were a contract between you and your spouse and would have been treated as such. That is the same treatment that you would receive currently.
If you or your spouse (whichever of you was obligated to pay the contractual alimony) failed to make good on your promise to pay, then contract laws of Texas would come into play and could be applied by a family court to hold them/you responsible for the failure to pay. The laws of contracts and the family courts would thus come together to enforce the terms of your agreement should one of you fail to live up to your end of the bargain. This means that remedies available under Texas family law, such as contempt, would not be available to you in a situation where it is contractual alimony rather than spousal maintenance that is entered.
The important thing for you to note is that now spousal maintenance is also a possibility to be ordered in your case. As such, you need to be aware that you, your spouse, and your attorneys must make sure that you state specifically in your final decree of divorce which type of post-divorce spousal support is being included in the orders. Not only does this clarify things for you and your spouse now, but it also makes known to the court in the future what remedies are available if an enforcement case becomes necessary.
Court-ordered spousal maintenance
While the Texas legislature did approve of a spousal maintenance addition to state law in 1995, the law-making body did not go very far in terms of the length of time that court-ordered maintenance could be assigned for nor the amount of money that could be paid to a spouse per month. The set of taxes defines spousal maintenance as an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.
To become eligible for spousal maintenance, you must meet two benchmarks. The first is that your spouse must have been convicted of a crime regarding family violence or you and your spouse must have been married for at least ten years. So long as one of these circumstances applies to you and your spouse, then you can request spousal maintenance and be eligible for it to be granted in your divorce. Let’s spend a little bit of time discussing how family violence and the length of your marriage are configured into an award for special maintenance.
My hope is I’m sure the same as yours that she would never be eligible for spousal maintenance due to there being a history of family violence in your household. I think it is safe to say that nobody wants to receive spousal maintenance because receiving spouse so care means that you cannot pay for the necessities of life without assistance from your ex-spouse. Even if they can pay you to spout some maintenance and you are eligible, it is not the most desirable position in the world for you to receive payments in this way.
This is twice as true if you become eligible for spousal maintenance due to being the victim of family violence. Family violence in and of itself has specific benchmarks that need to be met. This means that we cannot treat any incidents of abuse as being family violence. First, eligibility for family violence-related special maintenance would require your spouse to have been convicted of or receive deferred adjudication for a criminal offense that also constitutes active family violence under title four of the Texas Penal Code. Next, the crime must have occurred within two years before the date on which your divorce was filed or while your divorce was pending.
Title 4 in the Texas family code defines family violence as an act by a member of a family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical damage, bodily injury, assault or sexual assault but does not include defensive measures to protect oneself. An important point to make in this regard is that the statute does not require you and your spouse to have been married when the active family violence occurred. This means that you all could have been dating all the violent acts Ikerd and have it still counted for this provision. Please note that the Texas family code also covers violent acts regarding child abuse and neglect investigation.
Next, we should focus on a 10-year minimum length for a marriage to be considered for special maintenance. This is the preferable way to receive spousal maintenance as opposed to family violence-related eligibility. In general, to become eligible for spousal maintenance in Texas, you and your spouse must have been married for at least ten years. The additional factor to consider here would be that you would need to lack sufficient property, including property provided to you. Is it part of your community a state distribution to provide for your minimum reasonable needs?
The term minimum reasonable needs have been discussed in the case of law previously, but we should generally look at minimum practical requirements as maintaining your four walls, having food to eat, having clothes to wear, and usually being able to live their basic life. The same would be true for your children. Although, the need to provide these same things for your children is likely covered by child support. Additionally, if you are seeking special maintenance, you would need to fall into one of these categories.
First, you must show a family court judge that you cannot support yourself through appropriate employment because of an incapacitating physical or mental disability. The meaning of this is pretty self-evident, but we can talk about it briefly. You must be able to show a family court judge that you cannot work, either at all or at a bare minimum, to support yourself. This section does not cover the inability to travel extensively or perform more complex tasks. Being under a physical or mental disability finding from the Social Security Administration, military, or another government body is an excellent place to begin when considering this subject.
One thing that I will point out to you at this stage is that due to the pandemic and, more generally speaking, technological innovations as well as the willingness of employers to allow for remote work, we may see this factor being utilized less and fewer by spouses and supported less by family court judges. The reason being is that people, in general, can work traditionally in-person jobs on a remote basis by their computers. If you have a physical disability but have Internet access in can use a computer, then the odds are decent that you can likely find a job that you can sustain yourself with on the computer. this is important for you to consider both regarding special maintenance considerations and when it comes to finding work after a divorce. While you may not be as eligible for special maintenance, your ability to support yourself may have increased due to considerations like these.
Next, suppose you are seeking special maintenance. In that case, you may be eligible if you are a custodian of a child who requires substantial care and personal supervision because of a physical or mental disability which makes it necessary that you not be employed outside the home. Again, a family court judge would likely require some evidence that your child requires something close to around-the-clock care that you can only provide. Besides, the definition of physical or mental disability would need to consider the impairments that your child suffers from.
For example, if your child has autism or another condition on the autism spectrum but is instead high functioning and can attend school and care for him or herself to a large extent, then I believe this factor would not be as relevant for you. Simply put, you would have the ability to work typical job hours, and your child would not suffer for your having done so. On the other hand, if your child has a specific mental or physical impairment that allows them to be classified as disabled and requires you to provide the lion’s share of the care, you are more likely to be eligible for spousal maintenance under this type of scenario.
Finally, if you seek spousal maintenance, you must lack the earning ability in the labor market to provide support for your minimum reasonable needs. We see this happen in situations involving you as a spouse who had previously stayed at home to care for your children at the expense of your career. For example, let’s consider a situation where you choose to stay home with your children rather than go into the workforce. This means that it is more likely that you don’t have a great deal of work experience or education that would allow you to go into the workforce and immediately earn enough to support yourself on a minimum basis.
That last phrase that I used, namely minimum basis, is what I want to consider here as we close out today’s blog post. Namely, what do your minimum reasonable needs amount to regarding receiving spousal maintenance in Texas?
As with most topics regarding Texas family law, the question of a person’s minimal basic needs depends upon a fact-specific determination. This means that you must submit evidence to a court to prove your minimum basic needs. Namely, your minimum basic requirements may be different than what your neighbor’s minimum basic needs are, for example. Suppose you go into a trial or even temporary orders hearing without sufficient evidence to prove your minimal basic needs. In that case, you should not expect to receive spousal maintenance. A judge will presume that you do not need spousal maintenance absent evidence to the contrary.
New pair, for example, if I’m in your position, then I would have an itemized list of your monthly expenses presented with backup evidence for a judge. This way, a judge can get a window into your household budget to determine your actual need for spousal maintenance. Other information like your educational background, work history, monthly bills, and workplace opportunities made available to you would also seem to be relevant and helpful to a judge.
Another consideration is that even if you are awarded property out of your community a state, it would be essential for that property to be liquid enough for you to sell it. Specifically, suppose your spouse can show that you have a property that can be quickly sold, and the proceeds from the sale are used to meet your minimum basic needs at least for some time. In that case, your argument for spousal support becomes weaker. one of the more interesting questions frequently posed in situations like yours where spousal maintenance is being considered would be whether or not child support would count towards your income earning abilities. I have seen judges consider the amount of child support you receive as relevant in the circumstances and not appropriate in other circumstances. As mentioned previously, I think it is essential for new to consider the specific facts of your case and two speak with an experienced family law attorney to prepare your arguments for spousal maintenance.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog post; please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations by phone, in person, and via video. These consultations are an excellent way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.