Alimony in Texas – In Texas it is called “Maintenance.” first, there is no hard and fast 10 year rule, and, secondly, in Texas it is called “Maintenance.”
Some shortcut rules:
- First, there is no hard and fast 10 year rule. To qualify, you have to be married for a minimum of 10 years unless family violence is involved or disability.
- Alimony is disfavored in Texas. This is not California. For most of its history, Texas did not have any provision for alimony. What we call – “post-divorce maintenance.” From time to time, I have heard “I have been married longer than 10 years, I am entitled to alimony.” No, that is not true.
- A Texas Court cannot award permanent alimony. There is one exception – disability. If there is a permanent disability, the court can award permanent alimony subject to periodical court review.
- Family violence removes the presumption against awarding alimony and the “ten year” rule does not apply in this situation.
- You have to be married to be entitled to alimony. “An order for maintenance is not authorized between unmarried cohabitants under any circumstances.”
A little history – in 1997, the Texas Legislature passed the Texas Alimony statute. It is found in Chapter 8 of the Texas Family Code. Texas, at the time, was one of the few states that did not have an alimony statute. This was highly criticized because people, primarily women, were getting divorced where one spouse had foregone her career, was a stay at home mom and then stay at home housewife who, after the divorce, was left penniless/destitute with no prospects. The Texas Alimony (Maintenance) statute tries to correct this problem.
Under Chapter 8 of the Texas Family Code, the Court can order support payments for one spouse after the divorce is final but only if that spouse shows entitlement to “spousal maintenance.” The burden of proof is on the spouse seeking the alimony. To qualify for alimony/maintenance, the spouse will have to show (1) marriage of 10 years or more, (2) the spouse lacks the skills and experience for gainful employment, (3) lacks the means for self-support.
Alimony or Maintenance payments must cease no later than five years after the divorce if the parties were married for at least 10 years but no more than 20 years; seven years if the spouses were married to each other for at least 20 years but no more than 30 yers; and ten years of maintenance if the spouses were married to each other for at least 30 years or more. A court may not order a spouse to pay more than the lessor of $5,000 per month or 20 percent of the obligor (the person paying maintenance) monthly gross income.
The typical fact scenario for spousal maintenance involves an elderly housewife who has spent most of her married life in the home. She is without the requisite job skills to support herself.
Temporary support is a different concept than Alimony or Maintenance. Temporary support during the case is about supporting your spouse financially while the case is pending. The Court can order one spouse to pay the other “temporary alimony” for support during the pendency of the litigation. This is commonly referred to as “spousal support.” Spousal Support is usually awarded to one party due to some extraordinary financial need. For example, a recent case involved a wife who was working as a receptionist in order to fill her time and for spending money (she was approaching her senior years, the kids were grown and gone). Husband had a very good income (over six figures). They lived in a $300,000 home. Spousal support was awarded during the pendency of the case in order to allow her to continue to make the utilities and mortgage payments.
Contractual Alimony. The parties can agree for, as part of the division of the marital estate, post-divorce contractual alimony. Contractual alimony can be structured so that payments are deductible in calculating the obligor’s taxable income. See 26 United States Code §71. This is commonly done as a methodology for balancing out the property division where there are assets not readily divisible by the court such as the family business. Also, this is just a fact, oftentimes a spouse will pay contractual support to the other spouse as a effort to making things right. An example, Husband has a long time affair with secretary. He may pay contractual alimony to his spouse in a significant amount for a long period of time in order to assuage his guilt – done all the time. Note, the failure to pay contractual alimony is not subject to contempt as statutory alimony is. The failure to pay contractual alimony is simply a breach of contract subjecting the nonpaying spouse to all the remedies for a contractual breach – debt collection.