Divorce: Temporary Spousal Support in Texas

What is Temporary Spousal Support?

After a petition for divorce is filed, a party may ask the court to enter a temporary order for spousal support while the divorce litigation is pending. Most people believe that temporary spousal support orders are based on standards of living prior to filing for divorce, but this is incorrect. Temporary spousal support is meant to maintain a basic standard of living for the requesting spouse until the final divorce decree is entered by the court.

Basic Requirements

The court can enter an order for temporary support after a party submits a motion, the other party receives notice, and an evidentiary hearing is held. The burden is on the party seeking temporary support. At the hearing, the party making the request must satisfy certain residency requirements and show that the petitioner and respondent were parties to a valid marriage. The requesting party will need to present evidence and testify about her needs and the ability of her spouse to pay. Temporary support is awarded based on considerations of both 1) the degree to which the applicant is destitute of means to pay for his or her necessities during the pendency of the suit and 2) the ability of the requested spouse to pay.

Payment and Duration

Generally, payments are made from the community property of the couple–which would include the paying spouse's income. However, if there is no community property, the paying spouse may have to pay from his separate property. If the paying spouse violates a sufficiently clear, specific, and unambiguous temporary order and does not pay the support, the court, after a hearing, may order the non-paying spouse to be incarcerated until he complies with the order.

Usually, the temporary support order expires upon the entry of the final divorce decree. Even though the final decree controls regarding future support, the paying spouse is still obligated to pay any past due amounts under the temporary order, unless the final divorce decree states otherwise. Also, it should be noted that bankruptcy would not relieve the paying spouse of his temporary support obligation.

Notes about Appeals

Per § 6.507 of the Texas Family Code, temporary support orders are not eligible for interlocutory appeals–i.e., the paying spouse may not request that the appellate court review the trial court's temporary order during the pendency of the divorce. Additionally, if the final divorce decree of the trial court is appealed, temporary support may be ordered during the appeal's pendency.

Temporary Spousal Support vs. Spousal Maintenance

Remember, temporary support is intended to pay for basic, necessary expenses while the divorce is pending. It is not intended to balance the standard of living between the divorcing parties. Spousal maintenance is a post-divorce award included in the final divorce decree where the court orders one party to make periodic payments from future income for the support of the other party–what most non-lawyers may think of as alimony.

If you are contemplating filing for divorce and would like to discuss spousal support and maintenance, please schedule a consultation today. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the Firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.