Spousal support in a Texas divorce: Fort Worth divorce lawyer
There is no guarantee of alimony or spousal maintenance in a Texas divorce. Texas, like many states, changed its domestic relations laws (our Texas Family Code) in recent decades to curb the power of family court judges in Fort Worth, Dallas, and around other part of Texas, to grant any type of spousal support following a Texas divorce. In Texas there are two types of spousal support available to spouses: (1) spousal maintenance; and (2) contractual alimony. Maintenance is a form of spousal support within the Texas Family Code that a judge can order within statutory boundaries. Contractual alimony is a form of spousal support in which the spouses agree to spousal support as part of a contractual agreement to settle property issues in the divorce.
When spousal maintenance is granted under the Texas Family Code
The Texas Family Code instructs family courts to presume spousal maintenance is unnecessary. To obtain spousal maintenance the spouse seeking support must show he or she meets statutory requirements. A spouse may only obtain spousal maintenance if:
- There was family violence within the two years prior to filing for divorce or while the suit is pending;
- The marriage has been at least ten years and the spouse seeking support lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;
- The spouse seeking support lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs due to a physical or mental disability; or
- The spouse seeking support 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 his or her minimum reasonable needs.
The family courts will not automatically grant spousal support because one of the above conditions are met. The Family Code instructs the court to consider a long list of factors to determine whether the need for spousal support overcomes the presumption that it is unnecessary.
Duration of spousal maintenance in Texas
Judges grant spousal maintenance for a limited period of time in almost all cases. The Family Code defines the maximum limits for spousal maintenance but the code also only permits maintenance to extend for the shortest period necessary to eliminate the condition granting support. So if a spouse is awarded support because she cannot earn enough income to cover her minimum reasonable needs (and the marriage has been at least ten years long) spousal maintenance could be granted for five years but if the spouse obtaining support reaches a point where she could receive enough income to cover her minimum reasonable needs then maintenance can be terminated prematurely.
The exception to those limitations is where either the spouse or a child of the marriage has a physical or mental disability and that is the reason to grant support. The Family Code allows support to continue as long as the disability prevents the spouse from earning enough to cover his or her minimum reasonable needs. Since disabilities rarely disappear the spousal support will likely persist indefinitely.
In addition to maxing out the maximum duration for maintenance, the Family Code also sets out several reasons why maintenance will teminate regardless of the reason granted:
- Either the former spouse receiving support or paying support dies;
- The former spouse receiving support lives with another person on a regular basis that the former spouse is dating; or
- The former spouse receiving support marries somebody else.
Contractual Alimony in Dallas-Fort Worth
In a Texas divorce spouses can agree to spousal support, regardless of minimum reasonable needs, in a settlement agreement. This form of spousal support does not follow the statutory limits. It is “non-statutory maintenance”. You will sometimes hear this alternatively referred to as contractual alimony or just alimony.
Texas law no longer refers to alimony as spousal support although the IRS uses “contractual alimony” to refer to non-statutory maintenance. (There are some tax differences in statutory and non-statutory maintenance.) Some resources and divorce lawyers think of alimony as synonymous with non-statutory maintenance. Let’s use this term contractual alimony to distinguish this discussion from the statutory maintenance discussion above.
Contractual alimony can play by almost any rules. You can set the amount and duration far above the statutory limits. You can make a life long commitment to alimony. Also, you can pay out that “I am accustomed to a certain standard of living” type of alimony if you agree to it. It does not matter who has what minimum needs. Often contractual alimony becomes part of a mediated settlement agreement to simplify property division. This is especially true in divorces with assets in which liquidating or dividing them would devalue or destroy them. Contractual alimony in those cases are promises to pay a streak of payments in lieu of property in existence.
In other situations it is intended to get the other spouse on his or her feet without having to go through proving all of the statutory maintenance requirements or to strike a deal on a lesser amount.
Contractual Alimony vs. Spousal Maintenance in a Fort Worth divorce
In crafting a settlement in a divorce, there are important considerations about contractual alimony and its relationship to statutory maintenance. The code permits parties to use enforcement powers on contractual alimony to the extent it complies with statutory maintenance requirements. This is a sticky subject with many pitfalls. Usually contractual alimony is only enforceable by contract like any other contractual dispute. Moreover, promises of future payments generally will not have the protection of the Texas Family Code for property division. Future payments are not present property that the family court can split. Parties contemplating contractual alimony should hire a Fort Worth divorce attorney to assist them in the property division.