One of the most common questions that a Texas divorce lawyer hears has to do with when alimony might be awarded to a spouse in Texas. Unfortunately, the answer is not always a positive one, especially compared to the alimony statutes in other states.
What is alimony in Texas?
In Texas, alimony is called “spousal maintenance” and is used to help a spouse get back on their feet, but in very limited circumstances. Only where one spouse is convicted of a criminal offense that constitutes domestic violence can a spouse be ordered to pay maintenance regardless of the length of the marriage (no minimum years of marriage). Otherwise, there will be limitations on the amount and duration of alimony/maintenance awarded.
To be eligible for alimony/maintenance in Texas when there isn’t a criminal domestic violence conviction involved, a spouse must be married for a minimum of 10 years. Plus, the spouse must lack sufficient income or assets to support their minimum needs. Then, if those two criteria are met, the spouse asking for alimony/maintenance must also either have an incapacitating physical or mental disability, have a child with a mental or physical disability, or lack job skills to get employment to meet his or her minimum reasonable needs.
Maintenance is limited to a maximum of $5,000 per month or 20% of the paying spouse’s gross monthly income, whichever is less.
What factors does a judge look at in deciding whether to award alimony/maintenance?
The presumption is against awarding maintenance in Texas and requires a spouse to show that they have tried to get a job before being eligible to receive monthly support. That means that the person seeking maintenance must show that the maintenance is warranted under the law. The court will evaluate the following factors to determine the nature, amount, duration, and payment method of support:
- Each spouse's ability to provide for that spouse's reasonable needs
- The education and employment skills of both spouses, the time necessary to acquire education or training to enable the supported spouse to earn enough income to become financially independent
- The duration of the marriage
- The age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance
- If child support is a factor in the case, each spouse's ability to meet needs while paying child support
- Whether either spouse wasted, concealed, destroyed, or otherwise disposed of any community property
- Whether either spouse contributed to the other's education, training, or increased earning power during the marriage
- The property both spouses brought to the marriage
- Any contributions of a spouse as a homemaker
- Marital misconduct, including adultery and cruel treatment, by either spouse during the marriage, and
- Any history or pattern of family violence. (Tex. Fam. Code Ann. § 8.052)
How long will maintenance last?
If maintenance is awarded based on the physical or mental disability of the spouse or child, the duration may last as long as the impediment remains. For all other maintenance awards, the duration of monthly maintenance is limited to five years if the parties were married for less than 20 years. For people married 20 years but less than 30 years, monthly payments can last up to 7 years. And for spouses married 30 years or more, maintenance support is limited to ten years.
Maintenance orders will end before the termination date if either party dies, the spouse receiving support payments remarries or cohabitates in a romantic relationship, or upon review of the court.
Can I ask the court to modify a maintenance award?
A court cannot modify a maintenance award upward. However, the court can decrease a spousal maintenance award if there is a material and substantial change of circumstances since the first order. The original order remains in place until the court changes its order, so never take matters into your own hands.
Why is my friend getting more alimony than this?
There are two reasons why a person might receive more alimony than Texas law provides for spousal maintenance. First, they might have gotten divorced in another state where the law is more generous for maintenance. Keep in mind that marital property division rules are also different in those states, which may mean the spouse compromised the marital property division to get more alimony. Second, spouses can agree in a contract to a different alimony arrangement than what the law provides. In contractual alimony, parties can agree to as much for as long as they wish.