A divorce does not always have to be painful and confusing. When it is, however, it often comes from very contentious issues like battling for the division of assets, child custody and conservatorship, and the possibility of or need for spousal support. Even when both couples agree on almost everything, a Texas divorce can be a stressful and difficult prospect.
Our legal team understands the frustration and heartache that come with getting through tedious court proceedings. If you are having difficulty negotiating an alimony agreement and think you are entitled to court-ordered spousal support, we are ready to help determine whether you meet eligibility for spousal maintenance payments and to stand up for your rights.
The court does not necessarily have to order spousal maintenance in Texas. The Texas Family Code has limited circumstances that allow courts to issue an order of spousal maintenance.
The courts can enforce the order for spousal maintenance through charges of contempt of court, carrying a fine, or jail time. If not ordered by the court, spousal support can be reached through an agreement by the divorcing partners. When such an agreement is reached, it is referred to as contractual alimony.
According to the Texas Family Code, alimony can be court-ordered only in very limited circumstances. One of the spouses in each of these cases must be able to prove that they are unable to meet reasonable needs.
In addition, under Texas law, your ex-spouse cannot request court-ordered spousal maintenance if they lose their job or become incapacitated post-divorce and are no longer able to meet their minimum reasonable needs. Eligibility requirements state that such a condition of inability to meet reasonable needs exists during the divorce proceedings.
Reasons the spouse seeking support may receive a court order include the following.
Eligibility for court-ordered spousal maintenance requires that the duration of the marriage be at least 10 years (but not necessarily prior to filing the divorce case; see below), and that the spouse requesting alimony made appropriate efforts to earn enough income, or to develop the skills necessary during the divorce proceedings to meet the requesting spouse’s minimum reasonable needs.
Alternate eligibility requirements include cases in which a child of the marriage has a physical disability or mental disability requiring substantial care such that the requesting spouse’s average gross monthly income is restricted or will not be sufficient to cover their basic needs. The spouse seeking a maintenance order, usually the custodian of a disabled child of the marriage, must prove that the disability prevents them from earning sufficient income because they have to offer full-time care for the child.
A spouse may seek support payments if they have an incapacitating physical or mental disability that restricts the requesting spouse’s ability to earn sufficient income to cover their basic reasonable needs. Again, they must be able to prove in family court that their disability is incapacitating to this level.
Texas courts may also order maintenance to a spouse who has suffered from an act of family violence, abuse, or similar marital misconduct. In this case, the spouse who performed the act of abuse must have been convicted of or been granted deferred adjudication for the offense.
The act can be against the requesting spouse or a child and must have been committed within two years before the divorce filing or during the pending divorce. In this case, the duration of the marriage is not among the relevant factors in considering the alimony request.
These circumstances can be much more complex and confusing than they seem. If you are in need of spousal support and are concerned that you will not get the ruling you deserve, the right family law attorney can help you sort through the confusion and help fight for your rights. Contact the Law Office of Chris Schmiedeke, PC at 214-643-8904 or by using our online contact form for a consultation with a member of our legal team today.
The courts take many factors into consideration when reaching a decision on spousal support or maintenance. These include:
The vast majority of spousal maintenance cases fall under the lack of earning ability. Alimony may also be awarded if the requesting spouse’s financial resources are not sufficient to support them through appropriate employment. In the case of determining financial resources, the courts will look at both income and liquid assets as well as whether sufficient property exists to support the spouse requesting maintenance. Sufficient property can include both marital and separate property in the divorce case.
A spouse’s education, employment skills, and employment history are all important in the courts determining eligibility to receive maintenance payments. If the spouse requesting payments does not have employment skills or the necessary education, the courts can consider the availability of training and how feasible it will be for the spouse to obtain these skills.
A spouse seeking maintenance should never try to trick the courts. Texas law looks very unfavorably on acts of hiding evidence to try to make one’s situation look worse than it is. Besides the hiding of evidence, the courts will examine any abnormal or excessive expenditures by either spouse, as well as anything that appears to be fraudulent in representing community property disposition, joint tenancy, or other common resources.
Marital misconduct such as acts of family violence, abuse, sodomy outside the marriage, extramarital affairs, or other criminal and deviant behavior can have a powerful effect on a court order for alimony in Texas.
The entire point of alimony and spousal maintenance is to allow a spouse of lesser means to maintain the living standards to which they are accustomed. Courts will consider the contribution of a spouse to the romantic relationship and marriage both practically and financially. They will, for example, consider the efforts of a homemaker in the house as a measurable contribution to the marriage.
Living standards can also include age, physical condition, mental and emotional health, and other factors that contribute to the way one becomes accustomed to living.
The Texas Family Code specifies that the marriage must have a duration of 10 years, but it is a common misconception that the decade must have been completed before filing for divorce. The 10-year period encompasses the entire period from the date the marriage was finalized through the date of the divorce being finalized.
Because every circumstance and divorce case is unique, there is no set numerical value that can be given that applies to all cases. The Texas Family Code Sec. 8.055, however, does provide a cap on the amount that can be paid out each month. This cap is $5,000, or 20% of the payor’s gross monthly income (whichever is less). Gross income includes all wage and salary income as well as:
Yes, under the latest tax laws, any divorce after 2018 that includes spousal support is deemed taxable. In addition, support payments are no longer tax deductible by the paying spouse.
If the spousal support is court-ordered, guidelines exist for how long alimony must be paid. Texas has very strict guidelines that judges must follow. Usually, the duration of payments will depend on the length of the marriage and the living conditions of each spouse. Contractual alimony payments can depend upon the individual agreement.
It is also important to note that spousal support is different and distinct from child support; while the former is intended to allow the supported spouse to maintain their standard of living, the latter is intended to provide for the physical and emotional needs of a minor child, as well as the child’s lifestyle.
If the couple was married less than 10 years and the paying spouse was convicted of family violence, payments can continue for five years. If the spouses were married for between 10 and 20 years, payments can likewise continue for five years.
If the couple was married between 20 and 30 years, payments can continue for seven years.
If the couple was married for a minimum of 30 years, payments can last for 10 years. Texas law requires judges to order the shortest duration for support under the law for the supported spouse to gain the resources, skills, or employment to become self-supporting.
Living conditions refer to the presence of external conditions affecting the need for spousal support and maintenance payments. If the judge orders support due to custodial parenting duties for a child or infant, or due to the presence of a physical or mental disability, payments can continue for as long as these conditions persist.
Maintenance orders can also terminate if either party dies, the supported spouse gets married again or cohabitates with a third party while in a romantic or dating relationship, or upon a future order of the court after a new review. If you are looking to end support payments, it is a good idea to continue to follow the original court order until the judge hears a request for an alimony modification.
If you are facing a divorce and think you may be entitled to spousal support, a qualified divorce lawyer is your best shot at getting the payments you deserve. Texas law can be tricky and complex, and the experienced family law attorneys at the Law Office of Chris Schmiedeke are here to help guide you through the process. You do not have to fight alone. Contact us today at 214-643-8904 or through our online contact form for a case review with our knowledgeable and compassionate legal team. We also offer a variety of free resources, such as our YouTube channel and eBook!
I was born in Dallas and spent the majority of my life here. I moved to Denver in the middle of the first grade and moved back to Plano in the middle of the eleventh grade. I graduated from Plano Senior High in 1984 and then attended Richland College and the University of North Texas where a received a Bachelor of Business Administration. From there I attended the Texas Tech University School of Law and was licensed to practice law in May of 1993.
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