by Jana Wickham Paul and Holly Eckert
Contrary to popular belief, Texas alimony does exist, but it’s difficult to obtain. Post-divorce support is referred to as “maintenance” under Chapter 8 of the Texas Family Code. “Maintenance” means an award in a divorce of periodic payments from the future income of one spouse for the support of the other spouse. TFC § 8.001(1). Common misconceptions abound about maintenance. Also, recent substantial legislative changes went into effect for all cases filed on or after September 1, 2011.
MYTH: “If I’ve been married for 10 years and I’m the breadwinner, I’ll have to pay alimony.” ANSWER: Most likely, “no”, unless your spouse meets one of the statute’s eligibility requirements.
First, the threshold requirement for a spouse to qualify is that the maintenance seeking spouse must lack sufficient property, including separate property, at divorce to provide for the spouse’s minimum reasonable needs. TFC § 8.051. “Minimum reasonable needs” is not defined. Determining what the minimum reasonable needs are for a particular individual is a fact-specific determination that is made by the court on a case-by-case basis. Usually the court looks at a spouse’s monthly expenses to determine if she can financially support herself given the property division she receives.
Unlike under the old statute, this threshold requirement now applies to those seeking spousal maintenance based on the other spouse’s conviction of, or deferred adjudication for, family violence as defined by Texas Family Code in Section 71.004. If qualifying under family violence, the 10-year plus marriage rule doesn’t apply. So, a “newlywed” could receive maintenance. Further, the changes clarify that a spouse is only eligible to seek maintenance on the family violence basis if it occurred within two years before the divorce filing or during the pendency of the divorce, and it was committed against the other spouse or the other spouse’s child. TFC § 8.051(1).
The second way to qualify for maintenance falls under Section 8.051(2): a spouse must be unable to provide for his minimum reasonable needs because of (a) incapacitating physical or mental disability; (b) lack of ability to earn sufficient income and a 10-year plus marriage; or (c) is the custodian of a child of the marriage who requires substantial care and supervision because of a physical or mental disability which prevents the spouse from earning sufficient income.
If a spouse has been determined to be eligible for maintenance under Section 8.051(2((b), a rebuttable presumption still exists that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in earning sufficient income or developing necessary skills to provide for the spouse’s minimum reasonable needs during separation or during the pendency of the suit. TFC § 8.053(a).
MYTH: “If the court orders me to pay alimony, I’ll pay it forever.” ANSWER: The statute limits the duration and amount.
In determining the nature, amount, and duration of maintenance, the court can consider all relevant factors, including those listed in Section 8.052. Please see the new legislative changes for a complete list of the numerous factors.
Before the new statutory changes, the court could order maintenance for a period of no longer than three years. Now, maintenance may remain in effect for no more than five years if the spouses were married for 10 years, but not more than 20, or, if the spouses were married less than 10 years and eligibility is satisfied due to family violence. It lasts seven years if married for at least 20 years, but not more than 30, and 10 years if married 30 years or more. It is important to remember, however, that these periods are ceilings and not necessarily what might be ordered in every case. The court must limit the duration of an award for maintenance to the shortest reasonable period that will allow the maintenance seeker to earn sufficient income to provide his or her minimum reasonable needs. TFC § 8.054(a)(2).
Also, the court may order no more than the lesser of $5,000 per month or 20 percent of the obligor’s average monthly gross income. The old maximum award allowed was the lesser of $2,500 or 20 percent of the obligor’s monthly gross income.
With all of the new changes, it is worth a read of the statute to see if your client fits the alimony bill.
Jana Wickham Paul is a partner in the law firm of Hance Wickham, P.C., and is board certified in family law by the Texas Board of Legal Specialization. She can be reached at firstname.lastname@example.org. Holly Eckert is an associate at Hance Wickham, P.C. She can be reached at email@example.com.