Alimony principles in Texas

Q: Does Texas permit alimony?

A: Yes. Rather than use the terms “alimony” or “spousal support,” Texas uses the term “spousal maintenance.”

Q: What is spousal maintenance?

A: Spousal maintenance is monthly payment from one person to that person’s ex-spouse.

Q: What is the purpose of spousal maintenance?

A: The justification for maintenance is to allow time for the receiving spouse to become financially independent. In a marriage, one spouse may earn more money than the other spouse. When the couple divorces, the judge may order the spouse who earns more money to make a monthly payment to the other spouse.

• “The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse whose ability to support herself has eroded over time while engaged in homemaking activities and whose capital assets are insufficient to provide support.” Tellez v. Tellez, 345 S.W.3d 689, 691 (Tex. App.–Dallas 2011, no pet.)

Q: What are the qualifications for spousal maintenance?

A: The spouse seeking maintenance must show that he or she lacks sufficient property to satisfy his or her minimum reasonable needs and

1. the spouse paying maintenance must have been criminally convicted on a charge stemming family violence against the other spouse or the other spouse’s child within two years of the divorce,
2. the spouse seeking maintenance must have a disability keeping him or her from earning enough to satisfy his or her minimum reasonable needs,
3. the spouse seeking maintenance must have been married for at least ten years and cannot earn enough to satisfy his or her minimum reasonable needs,* or
4. the spouse seeking maintenance must have a disabled child whose care prevents the spouse from earning enough to satisfy his or her own minimum reasonable needs.

* The family code rebuttably presumes that maintenance is not needed under these circumstances.

Q: How long will spousal maintenance last?

A: For marriages lasting less than ten years, the Family Code requires that the length of maintenance last for the shortest time possible. Yet, for those marriages lasting ten years or more, the following applies:

• For marriages lasting between ten and twenty years, maintenance is five years.
• For marriages lasting between twenty and thirty years, maintenance is seven years.
• For marriages lasting more than thirty years, maintenance is ten years.

Q: Will a judge modify or revoke spousal maintenance?

A: Yes. Grounds for modification of maintenance may include retirement, inheritance, loss of employment, and incapacitating physical or mental disability. Maintenance ceases, however, upon death of either spouse or if the receiving spouse remarries or cohabits.

Q: Will a judge extend spousal maintenance?

A: Judges do not generally extend spousal support.

• In Hackenjos v. Hackenjos, 204 S.W.3d 906, 909 (Tex. App.–Dallas 2006, no pet.) the husband argued that his permanent disability justified extending maintenance longer than three years. The court stated the rule that “a party seeking to continue receiving spousal maintenance has the burden to prove by a preponderance of the evidence: (1) his incapacitating physical disability continues; and (2) that the incapacitating physical disability prevents him from supporting himself through appropriate employment.”

• A “court may order spousal maintenance for an indefinite period when the spouse seeking maintenance has an incapacitating physical or mental disability.” In Tellez v. Tellez, 345 S.W.3d 689, 692 (Tex. App.–Dallas 2011, no pet.) the court ruled that the wife’s “significant health issues”–diabetes, asthma, nerve damage to her feet and fingers, hypertension, allergies, arthritis, and severe depression–did not constitute an incapacitating physical and mental disability. Spousal maintenance remained limited to three years at $800 per month.

Q: How much is maintenance?

A: The spouse paying maintenance cannot pay more than $5000 per month or more than 20% of the spouse’s income.

Q: What if someone is not paying maintenance?

A: The receiving spouse may hire an attorney to file a petition for enforcement of spousal maintenance and order to appear. The court will determine the arrearages. The receiving spouse is entitled to arrearages even after maintenance terminates at some future date.

• Garnishing wages to pay spousal maintenance violates the Texas Constitution. Heller v. Heller, 359 S.W.3d 902, 905 (Tex. App.–Beaumont 2012, no pet.).