There is no guarantee of alimony or spousal maintenance in a Texas divorce. Texas, like many states, changed its family relations laws (our Texas Family Code) in recent decades to curb the power of family court judges in Fort Worth, Bedford, Dallas, and around other part of Texas, to grant any type of spousal support following a Texas divorce. Along with changes to the Texas Family Code, the legislature adopted specific terms to refer to types of spousal support. Outside of divorce lawyers and family courts, these terms are often used interchangeably. As a result there is confusion about what types of spousal support are available in Texas.
Even many divorce lawyers use these terms in unspecific ways to speak to clients to avoid confusion. However, this can ultimately bring confusion from those do not understand what they received in a property division.
Spousal Support in Texas
Spousal support has no specific meaning under the Texas Family Code. The Texas Family Code only speaks to “maintenance”. Maintenance is a term we will explore below. “Spousal support” is a catchall phrase that can refer to any payments made to an ex-spouse pursuant to the divorce. When you read about or hear the term “spousal support” it is important to explore what they mean.
Spousal Maintenance aka Statutory Spousal Maintenance in Dallas and Fort Worth, Texas
“Maintenance” is the term used in the Texas Family Code to describe the specific, statutory spousal support authorized by the Texas Family Code that a judge can order in a Texas divorce. Often people refer to maintenance as “statutory spousal support” or “statutory spousal maintenance” to refer to this kind of support. There are specific statutory requirements that a party must prove to receive an award of spousal maintenance. There are also specific, statutory limitations on how long and how much spousal maintenance a court can award.
Before discussing the statutory requirements for spousal maintenance in a Texas divorce, let’s briefly discuss temporary spousal maintenance. The rules for temporary spousal maintenance are slightly different than spousal maintenance awarded in the divorce decree. This temporary spousal maintenance is often put in place to allow the spouse to pay bills and hire an attorney. The rules around temporary spousal maintenance are different from post-divorce spousal maintenance.
First is whether the spouse seeking maintenance has sufficient property to provide for his or her minimum reasonable needs. Note that does not include the “accustomed to a certain standard of living” standard of the alimony commentary in the 1990s that led to much of the changes in spousal support laws around the country. We are truly talking about minimum needs like some form of shelter, food, basic clothing, transportation and so forth. The court must look at whether the spouse seeking maintenance can liquidate separate property assets to provide for these needs. If not then spousal maintenance may be appropriate.
Second, the spouse seeking maintenance must prove at least one of four other requirements:
1. The spouse asked to pay maintenance was convicted of or received deferred adjudication for a family violence act in the two years prior to filing suit for divorce or during the pendency of the divorce;
2. The spouse asking for maintenance has a physical or mental disability that prevents him or her from obtaining sufficient income to provide for his or her minimum reasonable needs;
3. The marriage lasted at least ten years and the spouse asking for maintenance lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs; or
4. The spouse seeking maintenance is the custodian of a child, of the marriage, of any age that requires personal attention and substantial care that prevents the party seeking maintenance from earning income to provide for his or her minimum reasonable needs.
The legislature chose these requirements for specific reasons.
First number 1 acts as a deterrent to family violence, particularly to prevent one spouse from using violence to coerce the other in the divorce. Number 2 discourages people with disabled spouses from divorcing them and dumping them off on the state’s dime. Number 3 deals with marriages where one spouse was a stay at home parent and has been out of the job market long enough that he or she will face difficulty obtaining more than an entry level job after acquiring financial obligations well above what entry level jobs pay. And number 4 prevents a spouse from avoiding responsibility for providing care for a disabled child (even an adult child) and dumping the rest of the family off on the welfare system.
What you do not find are spousal support systems designed to provide a lifelong commitment to buying luxury items.
The duration of maintenance is determined in part upon the reason maintenance is granted. Maintenance in Texas pays for the shortest duration required to meet the statutory intent. In addition to that discretionary limit, the Texas Family Code provides hard limits on maintenance on this schedule:
1. Five years if the marriage was less than ten years and the reason for maintenance is family violence;
2. Five years if the marriage was ten years or more but less than twenty years;
3. Seven years if the marriage was twenty years or more but less than thirty years;
4. Ten years if the marriage was thirty years or more;
5. But where disability of the spouse or a child is the reason for a maintenance award then the court can order maintenance until the disability ends.
Only that last condition allows for a potentially endless maintenance obligation but that is again not the situation of providing a life of luxury for somebody who could survive on their own. It is to provide for basic needs for somebody who cannot otherwise support themselves. In addition to these statutory limits on maintenance, the Texas Family Code provides that no matter the reason for maintenance or the ordered duration, the maintenance will prematurely end if the spouse receiving maintenance dies, regularly lives with a romantic partner, or remarries.
Spousal maintenance is also limited. Maintenance under the Texas Family Code cannot be in an amount greater than $5,000 monthly or 20% of the payor’s average gross income. Unlike child support in which there is a presumptive minimum, it is not presumed that the payor should pay the maximum possible. The court should award the least amount necessary to meet the payee’s minimum reasonable needs and should consider the ability of both spouses to provide for the payee’s minimum reasonable needs. Just because a spouse needs $5,000 monthly does not mean the payor will necessarily have to pay that amount. There are a number of factors to consider.
Spousal maintenance is enforceable by the Texas Family Code in essentially the same manner as child support. An income withholding order can require an employer to withhold maintenance from payroll. Failure to pay maintenance can also invoke the same enforcement proceedings, including contempt. It is a powerful financial obligation.
Contractual Alimony aka Non-Statutory Maintenance in Dallas and Fort Worth, Texas
In a Texas divorce, the spouses can agree to spousal support, regardless of the minimum reasonable needs of the parties, as part of an informal settlement or mediated settlement of the divorce. That spousal support is not from statutory requirements. The parties can agree to any property division they want. This form of spousal support is included in the discussion of maintenance under the Texas Family Code but it does not follow the statutory limits so 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 a form of 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. Or you can pay out that “accustomed to a certain standard of living” alimony if you want. It does not matter who has what minimum needs. Often contractual alimony goes into a mediated settlement agreement to simplify property division. The contractual alimony payments are promises to pay out a sum of money in lieu of property today.
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 than what the statutory maintenance might require.
In crafting a settlement of the property issues in a divorce, important considerations exist regarding whether to use contractual alimony and how it relates to statutory maintenance. The Texas Family Code permits a party to use the enforcement powers of the Texas Family Code to enforce contractual alimony to the extent it complies with the 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. The future payments are not present property that the family court can split. Parties contemplating contractual alimony should hire a divorce attorney to assist them in designing the property division.
But for tax purposes…
There are other differences between contractual alimony and maintenance that reach beyond the purpose of this discussion. We will leave the tax implications and tax classifications of each type of spousal support for another time.