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What is Spousal Maintenance, and do I qualify?

| Jun 8, 2021 | Family Law

A common issue our clients task us with solving is the question of “Alimony” and how can they get it, or stop their spouse from getting it. In this Article we will discuss Texas’ rules on alimony, and how getting alimony is easier said than done.

Alimony or Spousal Maintenance?

In Texas, there is no such thing as alimony as most people know it. What Texas does have is Spousal Maintenance. Spousal maintenance is essentially the periodic payment of income from one spouse to the other as support for the other spouse, which typically occurs with a divorce.

Can I qualify?

The Texas Family Code 8.001 offers several avenues for people to make a claim for spousal maintenance. For starters, a spouse can only make a claim for spousal maintenance if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for minimum reasonable needs One of the following must also be true:

  1. the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section Texas Family Code 71.004, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred:
    1. within two years before the date on which a suit for dissolution of the marriage is filed; or
    2. while the suit is pending; or
  2. the spouse seeking maintenance:
    1. is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
    2. has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
    3. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.

How long will it last?

The length of spousal maintenance largely depends on the several factors including length of a marriage, domestic violence and disability of a spouse or a spouse’s child. Each of these factors can contribute to the length of the award being extended. As a baseline though, here are some common spousal maintenance lengths:

  1. 5 years, if the marriage lasted less than 10 years and there was family violence;
  2. 5 years if the marriage lasted between 10 and 20 years;
  3. 7 years if the marriage lasted between 20 years and 30 years;
  4. 10 years if the marriage lasted more than 30 years or more;
  5. As long as the spouse satisfies eligibility requirements, if the spouse is disabled;
  6. As long as the spouse satisfies eligibility requirements, if the child of the marriage is disabled;

How much can I get?

If you do qualify for spousal maintenance, courts will also have to determine how much the amount of your payments will be. To do this, courts will consider a large number of factors including but not limited to:

  1. each spouse’s ability to provide for that spouse’s minimum reasonable needs independently;
  2. 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;
  3. the duration of the marriage;
  4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
  5. 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;
  6. the property brought to the marriage by either spouse;
  7. the contribution of a spouse as homemaker;
  8. marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
  9. any history or pattern of family violence

Even though every case is unique, Texas Courts are capped at awarding spousal maintenance at $5,000.00 or 20% of the paying spouses average monthly gross income, whichever is less (See Texas Family Code 8.055). Unique to Texas, is that the amount of spousal maintenance is statutory, and can not exceed the statutory cap.

Practically speaking, will you recover?

It’s difficult to say. Just because a spouse qualifies for spousal maintenance does not mean that a court is required to award it. In fact it can be downright difficult to not only meet the requirements for spousal maintenance, but to also convince a court that it is necessary. Not to mention the fact that the other spouse being asked to pay has several defenses to the request including, but not limited to:

  1. Verified denial of marriage; and
  2. Cohabitation;

If you feel that you have a claim to spousal support or are being asked to pay spousal support your concerns are equally valid. If this article applies to you and you need legal advice, we recommend that you hire a competent attorney to help you with your situation and protect your rights.

Disclaimer: The legal information presented herein should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. General advice should always be tested by the particular facts and circumstances of each case. Legal advice is almost always case specific. Statues, ordinances, legal procedures, case law and rules of evidence are often revised.