Will I be responsible for paying spousal maintenance after my divorce?
This is one of the most common questions in divorce cases and the answer is, it depends. Texas law and policy includes a presumption that a divorcing spouse does not need maintenance, also known as alimony. This is a rebuttable presumption however, and in cases involving family violence and in several other circumstances, a spouse seeking maintenance can overcome the no-maintenance presumption. The Texas Family Code identifies the circumstances in which a spouse can qualify for maintenance, as well as the factors the court must weigh in determining the amount and duration of a spousal maintenance award. When the court awards maintenance, the clerk of court issues a writ of withholding to the obligor spouse who is required to make maintenance payments, so the funds are withheld from their paycheck and directed to the obligee spouse entitled to maintenance.
Maintenance seeking spouses must overcome the no-maintenance presumption to qualify for maintenance.
In many divorce cases both spouses work and are capable of supporting themselves after divorce, but in many others there will be a spouse with a significant need for support by the other during and after divorce. There is no assumption of automatic maintenance in Texas, under the no-maintenance presumption, however the Texas Family Code identifies the factors used in determining if a spouse qualifies for maintenance. The spouse seeking maintenance must demonstrate that if able to work, they made good effort to find work or develop skills and basic training to work and earn enough income to support their basic needs. In all qualifying situations, with the exception of family violence, the inability to support oneself if an important factor in qualifying for maintenance.
The following a situations in which a spouse may be eligible to receive maintenance:
- The obligor spouse was convicted or received deferred adjudication of family violence within two years of the filing of divorce or during the divorce;
- In a 10 year marriage the obligee spouse is unable to earn sufficient income to meet basic needs;
- Incapacitating physical or mental disability prevents the obligee spouse from earning sufficient income to meet basic needs;
- The obligee spouse cannot earn sufficient income to meet basic needs because that spouse is the custodial parent of a child of any age requiring supervision due to a mental or physical disability, preventing that spouse from earning income.
Once a court finds a spouse is eligible to receive spousal maintenance, the court may set a duration limit on how long maintenance shall be paid.
The family court has discretion in weighing the factors in each case and may order maintenance for a short period for one spouse to get on their feet financially, and there is a maximum period fixed by the family code. If the maintenance award is based in part on family violence, even if the marriage is less than a 10-year marriage, the maximum maintenance award lasts five years. Based on the length of the marriage alone, there is a five-year maximum maintenance allowance for marriages lasting 10 – 24 years; seven-year maximum for a 20 – 30 year marriage; and a 10-year maximum maintenance award for a 20 – 30 year marriage. Please take note that these are the statutory and maximum limits for the duration of maintenance, and if a spouse has the ability to pay for their basic needs, and to increase their education and skill sets to earn income, the maintenance award may be considerably shorter than the maximum allowance by Texas law.
Termination of court-awarded maintenance, and maintenance agreed between the parties occurs when one of the spouses dies, the obligee spouse receiving maintenance remarries, or when that spouse permanently resides with another in a dating or romantic relationship; living with a roommate will not terminate maintenance. If one of these conditions exists, the party seeking to terminate maintenance must do so with the court, presenting evidence as proof of one of the qualifying maintenance termination events.
The Texas Family Code sets a spousal maintenance cap and uses specific factors in determining the amount and duration of a maintenance award.
Higher income earners looking at paying maintenance will only pay a maximum amount equal to 20 percent of their average gross monthly income, up to but not exceeding $5,000 per month. The court will review the listed factors in the Texas Family Code to determine the nature, amount, duration and manner of periodic maintenance payments.
Maintenance factors set forth in the Texas Family Code are as follows:
- each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;
- 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, and the availability and feasibility of that education or training;
- the duration of the marriage;
- the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
- the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
- 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;
- the contribution by one spouse to the education, training, or increased earning power of the other spouse;
- the property brought to the marriage by either spouse;
- the contribution of a spouse as homemaker;
- marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
- any history or pattern of family violence, as defined by Section 71.004.
Maintenance awards can be modified and enforced in court, as necessary.
Most often, the change in income of the obligor spouse paying support is a basis to ask the court to modify the maintenance withholding to reflect a change in income. After a motion to modify maintenance is filed and served on the other party, the court will have a hearing and the party seeking to modify maintenance will present evidence at the modification hearing.
If for some reason a party ordered to pay spousal alimony fails to make payments, the amount past due is called an arrearage. When a child support obligee is not receiving maintenance payments from the obligor payor, the court can enforce the maintenance order with the power of contempt. Similar to the procedure involved in modification, the court will have a hearing to determine whether the support obligor should be held in contempt, and how the arrearage will be paid and brought current.
Dallas and Collin County Board Certified divorce and family law attorney, Mark Scroggins, along with their team at Scroggins Law Group
can advise and represent spouses seeking maintenance in divorce cases.
At Scroggins Law Group, our Dallas and Collin County divorce attorneys have more than over 24 years of collective experience with family law cases. When you retain our firm, you can trust that your case is in the hands of a highly skilled, dedicated professional. we understand the unique challenges of a high value divorce case, and more importantly, have the knowledge and experience you need on your side. Call us today to learn more about Texas divorce and family law: (214) 469-3100