What is Spousal Maintenance?

Spousal maintenance is a post-divorce award typically 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. While the Texas Family Code does not refer to this as "alimony," many people casually refer to it as such. Remember, temporary spousal support and spousal maintenance are two distinct things under the Family Code. Temporary spousal support is intended to pay for basic, necessary expenses while the divorce is pending.

Basic Requirements

First, the court determines whether the spouse seeking maintenance is eligible. The court may order maintenance for either spouse only if the requesting spouse will lack sufficient property for the spouse's minimum reasonable needs and: 

• the spouse who would have to pay maintenance was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, committed during the marriage against the other spouse or the other spouse's child, and the offense occurred:

  • within two years before the divorce suit was filed; or

  • while the divorce suit was pending;

OR

•  the spouse seeking maintenance:

  • is unable to earn sufficient income due to an incapacitating physical or mental disability;

  • was married to the other spouse for at least 10 years and lacks the ability to earn sufficient income to provide for the spouse's minimum reasonable needs; or

  • is the custodian of a child of the marriage who requires substantial care and personal supervision due to a physical or mental disability that prevents the spouse form earning sufficient income to provide for the spouse's minimum reasonable needs.

Spousal Maintenance Factors

If the court determines that the requesting spouse is eligible, it uses the following factors to determine the nature, amount, duration, and manner of the maintenance payments:

(1) 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;

(2) 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;

(3) the duration of the marriage;

(4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;

(5) 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;

(6) 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;

(7) the contribution by one spouse to the education, training, or increased earning power of the other spouse;

(8) the property brought to the marriage by either spouse;

(9) the contribution of a spouse as homemaker;

(10) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and

(11) any history or pattern of family violence.

Depending on the circumstances, the court may have to evaluate whether the requesting spouse has done enough to provide for her own reasonable minimum needs, including developing job skills during a period of separation and while the divorce is pending.

These factors make the court's inquiry very fact-intensive. The court has wide discretion to make a determination after a holistic examination of the marriage.

Payment and Duration

The Texas Family Code is very stingy with spousal maintenance. Courts may not order maintenance that exceed the lesser of 1) $5,000 or 2) 20% of the paying spouse's average monthly gross income.

Unless the requesting spouse is disabled or cannot support herself because she is caring for a disabled child, the maximum duration of ordered maintenance depends on the length of the marriage and the maintenance must be limited to the shortest reasonable period that allows the requesting spouse to be able to provide for her reasonable needs. Typically, the duration of a maintenance order is as follows:

Modification

A motion to modify a maintenance order can be filed in the court that issued the original order, but it must be filed as an original lawsuit. After a hearing on the motion, the court may modify an original or modified maintenance order on a proper showing of a material and substantial change in circumstances that occurred after the date of the order or decree, including circumstances reflected in the spousal maintenance factors listed above. The court cannot increase maintenance in amount or duration as originally ordered.

Termination

If either party dies or the spouse who is awarded maintenance remarries, the obligation to pay future maintenance terminates. Additionally, the court must order termination of maintenance if it finds that the spouse receiving maintenance lives with someone with whom she has a dating or romantic relationship in "a permanent place of abode on a continuing basis." Basically, the receiving spouse's marital status must remain single and he or she cannot live with anyone he or she is dating. However, this does not preclude spending nights in the usual course of dating, as is typical in this day and age. Keep in mind, though, that the termination of maintenance does not remove any obligation to pay any amounts that accrued prior to entry of a termination order by the court.

If you are contemplating filing for divorce and would like to discuss spousal 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.