Many Texans think Texas is a “No Alimony” state. Well, pardner, it just ain’t so. In Texas, alimony is properly called “spousal maintenance.” New spousal maintenance laws went into effect in 2011. On September 1, 2013, a few more refinements became effective.
Let’s take a look at why, when, and how alimony can be gotten, or avoided, in Texas.
Two Types of Alimony Available
Court-ordered spousal maintenance is available under the Texas Family Code. When court-ordered, the Code sets out when alimony can be granted, how long it will last, and how much it will be. Because it is a court order, failure to pay is contempt of court.
There is another type is called “contractual” or “negotiated” alimony. In this type, you and your soon-to-be-ex negotiate and reach an agreement on alimony, your attorneys draft a contract, and both parties sign it. The contract is then filed with the court. It could also be included as part of the Temporary Orders or the Final Decree of Divorce. In contractual alimony, contempt is not a remedy. In the event of failure to pay, a petition or motion to enforce would need to be filed.
1. Temporary Support
Usually, after the divorce is filed, one of the first things the two sides do is settle on or get court-ordered Temporary Orders. Temporary Orders expire when the divorce is finalized. They cover everything from child custody, to spousal support, to who can drive what car, to who takes the dog to the groomers. Temporary Orders often form a blueprint of what the final orders will be. Under Texas law, each spouse has a legal duty to provide for the other spouse during the marriage. Parties are married right up to the moment the final decree is signed. Spousal maintenance ordered or agreed during the pre-divorce period commonly becomes post-divorce alimony.
2. Court-Ordered Alimony
To qualify for court-ordered alimony, a party needs to meet certain statutory requirements. They are:
—Receiving party will lack sufficient property upon divorce to provide for “minimum reasonable needs”;
- Paying party was convicted or received deferred adjudication for family violence against the receiving party or their child within the last 2 years or during the divorce process.
- Receiving party qualifies for alimony because:
- has a physical or mental disability causing the Receiver to be unable to earn sufficient income; OR
- has been married for at least 10 years and lacks the ability to provide for themselves. (This is often seen with stay-at-home moms who have been out of the workforce a long time.); OR
- takes care of the couple’s child who has a physical or mental disability that prevents the Receiver from being able to earn sufficient income.
The Receiver needs to be able to show the court that the Receiver “exercised diligence” in really trying to find a job to provide for their own needs or that the Receiver is getting the necessary skills to be able to get such a job.
One key phrase is “minimum reasonable needs.” Here the courts will look to a certain degree at lifestyle. Yes, you could live on $1,000 per month, but if you’ve been living on $50,000 per month then $1,000 per month isn’t reasonable!
How Long Can Alimony Last?
If the alimony was created by contract, it can, and does, last as long as the contract says. Typically, alimony ends when the Receiver dies (obvious, I hope!) or gets remarried. Usually, contracts include language that says alimony ends if the Receiver “conhabitates,” lives-with, a new romantic or dating partner.
For court-ordered alimony, duration is established by law. Courts are supposed to keep alimony to the “shortest reasonable period” to get the Receiver providing for their own needs. For couples married less than 10 years with a family violence conviction or couples married between 10 and 20 years, 5 years of alimony is the longest period allowed by law. Couples married between 20 and 30 years may qualify for up to 7 years of alimony. Finally, couples married 30 years or more are eligible for 10 years of alimony.
In addition, court-ordered spousal support ends if either Receiver or Payor dies, if Receiver gets remarried, or if Receiver cohabitates with someone with whom the Receiver is romantically involved.
As you might predict, negotiated alimony can be for any amount the parties can agree. It can even get creative; for example, 25% of royalties received on production in Ector County.
Court-ordered spousal maintenance is limited to a maximum amount of $5,000 per month or 20% of the Payor’s average monthly gross income, whichever is less. Social security and disability benefits are not considered part of “gross income,” so they cannot be considered in the calculation. Keep in mind that spousal support falls after child support. Courts aren’t going max out child support, max out spousal support, and leave the Payor with $20 for the month. The $5,000 or 20% are maximum numbers and courts often order less.
Judges don’t just look at a balance sheet when they calculate spousal maintenance. In fact, the Texas Family Code provides courts with specific direction to consider “all relevant factors” when making their decisions. In addition, the statute offers eleven specific factors which includes: each party’s abilities to provide for their own needs; education levels of each party; length of the marriage; the Receiver’s age, employment history, mental and physical abilities; the effect of child support mandates on the Payor; if either spouse wasted marital money or assets (usually gambling, drug, or shopping addictions fall into this); whether Receiver helped pay for Payor’s education (often when wife has put husband through medical or law school); amount and value of each party’s separate property; whether Reciever was a stay-at-home mom; adultery or cruelty between the spouses; and, family violence history.
For court-ordered support, the parties must be formally married or qualify as a common law marriage. This means the marriage conforms to the Texas statutory requirement of “one male and one female.” Just as same-sex couples who legally married in another state cannot divorce in Texas, neither can they get a Texas court to order spousal maintenance. However… Texas courts will enforce court-ordered alimony ordered by other states even when that order is outside what a Texas court could legally order. So, it is arguable that a Texas court would enforce court-ordered or negotiated alimony in a same-sex divorce from another state.
Usually the Payor of the spousal support is able to deduct the amount spent on alimony from the Payor’s taxes, while the Receiver must claim the alimony as income. Usually. The basic question is whether the money is actually spousal maintenance or if it’s really to compensate for another asset. For example, if Payor agrees to pay alimony if Receiver agrees to let Payor keep all of the 401(k) plan, that’s probably not going to be “real” alimony and probably not tax deductible. Your CPA will be able to best answer any tax-related questions.
Each marriage and each divorce is unique. Plus each party to a divorce has their own unique interests and concerns. A good family lawyer knows the law, is able to analyze the specifics of the situation, and offer effective ways to accomplish your goals.