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Alimony In Texas
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Alimony in Texas

What is Alimony in Texas

Alimony is the money a spouse pays for the support of a former spouse after a divorce in Texas. Chapter 8 of the Texas Family Code regulates the administration of alimony in the state. Alimony is formally referred to as "spousal maintenance" or "maintenance" in the state. In Texas, spousal maintenance is meant to assist the spouse receiving maintenance transition into an income-making role for a specified period and not as a permanent salary.

There are two types of maintenance in Texas: contractual alimony and court-ordered spousal maintenance. Contractual alimony is an amount a spouse agrees to pay to support the other spouse after a divorce, and it becomes binding when a Family Court approves the agreement. Both spouses must agree on the frequency and duration of contractual alimony. A spousal maintenance order is an award of periodic payments from the future earnings of one spouse for the support of the spouse seeking maintenance after the dissolution of their marriage. A Family Court judge will award spousal maintenance if the spouse seeking maintenance meets the eligibility requirements stated in the law. The judge decides the amount and frequency of spousal maintenance after considering all factors in a case.

Texas is a community property state. As encoded in Chapter 7 of the Texas Family Code, the Award of Marital Property law mandates that all assets and liabilities acquired by a married couple should be shared in a "just and right" manner between both divorcing parties. The law recognizes and rewards the contribution of a spouse who does not work outside the home. Consequently, the Texas Maintenance law orders spousal maintenance in limited circumstances.

Texas Alimony Laws

Chapter 8 of the Texas Family Code provides for the award of spousal maintenance to a spouse if the spouse seeking maintenance will lack sufficient property, including community property received from the divorce, to provide for the spouse's minimum basic needs after the divorce. Spousal maintenance is ordered either during the divorce suit or in a proceeding for spousal maintenance in a court with jurisdiction over the divorce case. In addition to a spouse's inability to meet basic needs, one of the following conditions must also be met before a court can issue a spousal maintenance order:

  • The spouse from whom maintenance is sought must have been convicted or received deferred adjudication for a criminal offense involving family violence against the other spouse or the other spouse's child during the marriage. The criminal offense must have occurred within two years before the date of filing the divorce suit or while the divorce suit was pending
  • The spouse seeking spousal maintenance:
    • Is unable to earn sufficient income to meet basic needs due to an incapacitating physical or mental disability
    • Is the custodian of a child from the marriage who requires supervision and substantial care due to a mental or physical disability that prevents the spouse from earning sufficient income to meet basic needs
    • Has been married to the other spouse for at least ten years and cannot earn sufficient income to meet basic needs. The spouse must have diligently sought to earn adequate income or is acquiring necessary skills to earn income to meet basic needs

The Family Court decides the nature, duration, amount, and frequency of spousal maintenance for a spouse eligible for maintenance. The factors considered in the determination of a spousal maintenance order are:

  • The duration of the marriage
  • Each spouse's ability to independently provide for their basic needs considering their financial resources after the dissolution of the marriage
  • The age, earning ability, employment history, physical, and emotional condition of the spouse seeking maintenance
  • The employment skills and education of the spouses
  • The availability and feasibility of educating or training the spouse seeking maintenance and the time needed to acquire such education or training
  • The effect of providing periodic child support on the spouse's ability to meet basic needs
  • The property brought to the marriage by the spouses
  • Excessive or abnormal spendings, concealment, or fraudulent disposition of community property by either spouse
  • The contribution of a spouse as a homemaker
  • History of family violence
  • Contribution of a spouse to the training, education, or increased earning power of the other spouse
  • Marital misconduct, adultery, and cruel treatment by either spouse during the marriage

An eligible spouse may not be awarded a maintenance order if the court determines that the prevailing conditions do not support issuing one. For instance, a court may not order a spouse with multiple existing child support obligations to pay spousal maintenance. Spousal maintenance is only applicable to married couples in Texas; the law prohibits spousal maintenance to former cohabiting partners. Spousal maintenance ends when the ordered time lapses, one spouse dies, or the spouse receiving maintenance remarries. A court can also order the termination of a spousal maintenance order if the former spouse receiving the maintenance has a romantic relationship and cohabits with another person in a permanent residence.

The maintenance order can be modified if there is a substantial and material change in the circumstance of either spouse, such as a loss of employment by the spouse paying the maintenance. A spouse's inability to pay maintenance must be proved in court to modify or rescind the maintenance order.

A spouse seeking maintenance can enforce contractual alimony or court-ordered spousal maintenance by filing a maintenance enforcement suit in a Family Court. A court can enforce contractual alimony to the extent that the agreed amount conforms with the amount the court would have ordered as spousal maintenance. For instance, if a spouse is seeking the enforcement of a contractual alimony of $20,000 per month, the court cannot enforce more than $5,000 per month, which is the maximum maintenance allowed by law. If a court finds a spouse in default, the court can order the arrears be paid by all means available in law to repay debts, including income withholding.

A sponsored immigrant spouse in Texas can enforce the Affidavit of Support signed by the other spouse to request for maintenance from the sponsor. The court will mandate the former spouse to provide the immigrant spouse 125% of the Federal Poverty Guidelines until the immigrant spouse becomes a US citizen or earns 40 credits of work history (a credit of work history is equivalent to three months of work).

How Does Alimony Work in Texas?

In Texas, either spouse can request for spousal maintenance during the divorce proceedings. The spouses can present an agreement to the Family Court judge for approval if they agree on all relevant points. If they do not agree on the maintenance's amount, frequency, or duration, then the issue is brought before the judge for determination. The Family Court judge will consider the spouse's eligibility for spousal maintenance and evaluate all the factors in the case to decide. The judge will issue a maintenance order if there are sufficient reasons for spousal support. Sometimes, the maintenance order is issued before the conclusion of the divorce case. Either spouse can file a spousal maintenance suit after a divorce if the court where the marriage was dissolved does not have jurisdiction over spousal maintenance.

Once a spousal maintenance order is issued, it takes immediate effect, and the maintenance is paid to the spouse in need of support. An exception to direct payment is when a child support order is issued with it. A spouse ordered to pay spousal maintenance and child support to the spouse seeking maintenance must pay both to the Texas State Disbursement Unit (SDU).

A court can mandate an employer to withhold spousal maintenance from the wages of a spouse ordered to pay spousal maintenance. If the maintenance was reached by agreement between both spouses, the court can only order the withholding of an amount the judge would have ordered without the agreement and for the duration stipulated by law. Where a spousal maintenance withholding order is issued to the employer of the spouse paying the maintenance, the employer must withhold awarded amounts from the payer's wages in the following order:

  1. Child support (if applicable)
  2. Spousal maintenance
  3. Child support arrearages (if applicable)
  4. Spousal maintenance arrearages (if applicable)

The law limits the amount that can be withheld from a spouse's wages for child support and spousal maintenance to 50% of disposable wages. Child support takes precedence over spousal maintenance. A spouse paying spousal maintenance is responsible for informing the court and the former spouse of a change of employer within 7 working days of the change. The spouse must also provide the name, address, and mailing address of the new employer.

A spouse that fails to pay spousal maintenance can be tried for contempt of court, and the amount owed is referred to as arrearages. Arrearages are paid along with the maintenance until the payment is complete. The law mandates that arrearages be paid at the earliest possible time. It can either be paid with an amount sufficient to clear it within 2 years or with an additional 20% of current maintenance. Arrearages must be paid until cleared, even if maintenance has been completed.

How Long Does Alimony Last in Texas?

Per Chapter 8.054 of the Texas Family Code, a spousal maintenance order will be in effect for the shortest reasonable period to allow the spouse seeking maintenance to earn sufficient income to meet their basic needs. The law allows spousal maintenance to last for:

  1. Up to five years after the order date if:
    1. The spouses were married for less than ten years and the spouse to receive the maintenance is eligible as a result of being a victim of family violence from the other spouse
    2. The spouses were married for between 10 and 20 years
  2. Up to seven years after the order date if the spouses were married for between 20 and 30 years
  3. Up to 10 years after the order date if the spouses were married for 30 years or more
  4. As long as the court-approved, voluntary agreement between both spouses stipulates
  5. As long the spouse seeking maintenance is incapacitated physically or mentally, provided the disability is known before the conclusion of the divorce
  6. As long as a child in the marriage is incapacitated physically or mentally such as to prevent the spouse, who cares for and has custody of the child, from earning sufficient income

How Much is Alimony in Texas?

There is no limit to the amount that can be paid as spousal support to a former spouse in contractual alimony. Both spouses can agree on the amount and duration suitable for them. The court will be required to approve the agreement upon confirmation that the spouses did not enter into it under duress.

Court-ordered spousal maintenance has a maximum cap of $5,000. The Texas Maintenance law, as encoded in Chapter 8.055 of the Texas Family Code, stipulates a maintenance amount that is the lesser of either 20% of the spouse's average monthly gross income or $5,000. A spouse that earns a monthly gross income above $25,000 will only be mandated to pay $5,000.

How is Alimony Calculated in Texas?

The court divides the spouse's monthly gross income by five to determine the spousal maintenance amount. The result is compared with $5,000, and the lesser of both is fixed as the maintenance amount to be paid. The monthly gross income is calculated by adding all wages and compensation of personal services such as tips, overtime pay, commissions, and bonuses received in a year. The following are then added to the sum:

  1. Self-employment income
  2. Dividends, interests, and royalty
  3. Rental income after deducting operating expenses and mortgage payments
  4. Other incomes received such as pensions, retirement benefits, severance pay, trust income, gifts, prizes, maintenance, trust income, annuities, unemployment benefits, and capital gains

The final figure is divided by 12 to get the monthly gross income. The following are not included in the calculation of the gross monthly income for spousal maintenance:

  • Accounts receivable
  • Return of principal
  • Foster care payments for a child
  • Temporary Assistance for Needy Families (TANF) payments
  • Federal public assistance programs' payments
  • Workers' compensation benefits
  • Supplemental security income (SSI)
  • Social security benefits
  • Disability benefits
  • Disability compensation from the Department of Veterans Affairs

How to Avoid Paying Alimony in Texas

Chapter 8 of the Texas Family Code dissuades issuing of spousal maintenance orders except in rare cases. Even where it is issued, some conditions permit rescinding the order. The court will not order spousal maintenance or will revoke a spousal maintenance order if any of the following are present:

  • An agreement between the divorcing parties to discard alimony
  • Evidence of marriage of the spouse seeking maintenance to another person
  • Evidence that shows that the spouse seeking maintenance is romantically involved with another person and they cohabit
  • Proof that the spouse seeking maintenance can provide for their basic needs
  • Evidence that the spouse seeking maintenance is extravagant and wasteful
  • Evidence that the spouse ordered to pay maintenance cannot provide maintenance