Alimony in the classic sense is not available in Texas. That said, a court can order one spouse to pay the other spouse “spousal maintenance” – also known as court-ordered alimony. Spousal maintenance is a series of periodic payments from the future income of one spouse to support the other spouse. It is meant to provide an ex-spouse with temporary, limited support to cover his or her “minimum reasonable needs” during the period of uncertainty immediately following a divorce. Spousal maintenance is generally paid monthly, although the court has the discretion to require payment on a more frequent schedule.
New tax law for 2019. The recent new tax bill eliminated a tax break for court-ordered alimony payments in divorces finalized after December 31, 2019. Under the new law, Americans who finalize their divorces or modify existing divorce agreements in 2019 or later will no longer be able to take a tax deduction for alimony payments to their ex-spouses. Divorces finalized or agreements modified before the end of 2018, however, will still qualify for the annual deduction going forward — a distinction with significant financial implications for couples where one partner earns substantially more per year than the other.
Determining eligibility to receive spousal maintenance. A request for spousal maintenance (or court-ordered alimony) is usually made during the divorce proceeding, although it also can be brought as a separate suit after the divorce is final. To be eligible to receive spousal maintenance, an ex-spouse must prove he or she (i) was married to the paying ex-spouse (unmarried people living together are not eligible), (ii) lacks “sufficient property” to provide for his or her “minimum reasonable needs,” and (iii) falls within one of the four categories of persons eligible to receive spousal maintenance under the Texas Family Code.
The analysis of an ex-spouse’s “minimum reasonable needs” is fact-specific and depends on the particular person or family. “Minimum reasonable needs” generally includes expenses, such as the mortgage or rent, property taxes, utility bills, automobile payments, all insurance, credit union dues, gas, groceries, credit cards, medical expenses, prescription drugs and medicine, clothing, child care and transportation costs. In determining whether an ex-spouse has “sufficient property” to provide for his or her “minimum reasonable needs,” courts consider the receiving ex-spouse’s monthly income, value of any income producing property, value of his or her separate property, and value of property awarded to the receiving ex-spouse in the divorce.
Once the values are determined, the court will compare the requesting ex-spouse’s projected income with his or her projected expenses to determine whether the ex-spouse’s “minimum reasonable needs” will be met. To meet his or her “reasonable minimum needs,” an ex-spouse is not required to spend down long term assets, liquidate all available assets, or incur new debt.
To be eligible for spousal maintenance (or court-ordered alimony), an ex-spouse also must fit within one of the following four categories described in the Texas Family Code:
- The ex-spouses were married at least 10 years and the requesting ex-spouse lacks the ability to earn “sufficient income” to cover his or her “reasonable minimum needs.” The ten-year period is measured from the date of marriage to the date of trial. The parties do not have to be married for ten years on the date the request is filed or on the date they separate. Besides establishing the inability to earn “sufficient income,” the requesting party also must demonstrate that during a period of separation and/or during the time the divorce was pending, he or she made a diligent effort to either earn sufficient income or develop the necessary skills to provide for his or her “minimum reasonable needs.”
- Family violence. An ex-spouse is eligible to receive spousal maintenance if he or she proves (a) the other spouse committed an act of family violence against the requesting spouse and/or the requesting spouse’s child, (b) the violent act was committed during the marriage, within two years before the divorce was filed or while the divorce was pending, and (c) the offending spouse was convicted of, or received deferred adjudication for, the act of family violence.
- The ex-spouse is unable to earn “sufficient income” to provide for her “minimum reasonable needs” because of an incapacitating physical or mental disability. The ex-spouse must demonstrate he or she suffers from an incapacitating physical or mental disability. Once the existence of a disability is established, the ex-spouse must show the disability is incapacitating to the point it prevents the ex-spouse from earning a “sufficient income” to meet his or her “minimum reasonable needs.” That said, an ex-spouse seeking spousal maintenance based on his or her disability is not required to prove he or she exercised diligence in earning a “sufficient income” or in developing skills to provide for her “minimum reasonable needs.”
- The ex-spouse is prevented from earning sufficient income to provide for his or her “minimum reasonable needs” because the ex-spouse is the custodian of a disabled child of the marriage. The disabled child may be any age, including an adult child, and a natural child of the marriage, an adopted child, a child of either spouse born before marriage, a child born within 300 days after marital dissolution, a child born in an invalid marriage, and a child who continuously resided in the household with the husband for the first two years of life and whom the husband has represented to be his own. The requesting ex-spouse must show the child has a physical or mental disability requiring substantial care and personal supervision that prevents the ex-spouse from earning “sufficient income” to provide for his or her “minimum reasonable needs.”
Calculating the amount of spousal maintenance. If a spouse is determined to be eligible for spousal maintenance (or court-ordered alimony), the court must then determine the amount and duration of the maintenance payments—considering all relevant factors, including the following eleven statutory factors:
- Each spouse’s ability to provide for his or her own “minimum reasonable needs” independently, considering each spouse’s financial resources on dissolution of the marriage.
- The effect or periodic child-support payments or maintenance on each spouse’s ability to provide for his or her own minimum reasonable needs.
- The contribution by one spouse to the education, training, or increased earning power of the other spouse. This factor allows the court to place a value on the education and training received by a spouse during the marriage.
- The amount of separate property brought into the marriage by each spouse.
- Duration of the marriage.
- The requesting ex-spouse’s age, employment history, earning ability, and physical and emotional condition.
- The (a) education and employment skills of each spouse, (b) time necessary to acquire sufficient education or training to enable the requesting ex-spouse to earn sufficient income, and (c) availability and feasibility of that education or training.
- Acts committed by either spouse resulting in excessive or abnormal expenditures or the destruction, concealment or fraudulent disposition of community property, joint-tenancy property, or other property held in common.
- The court requesting ex-spouse’s contributions as a homemaker.
- Any marital misconduct, including adultery and cruel treatment, committed by either spouse during the marriage.
- Any history or pattern of family violence.To calculate the base amount of the spousal maintenance award, the court must determine the requesting ex-spouse’s “minimum reasonable needs,” which is usually equal to the ex-spouse’s monthly expenses described above. The monthly expenses are then compared to the ex-spouse’s monthly income, with the difference serving as the base amount of the spousal maintenance award. Once the base amount is calculated, the court must determine whether the award exceeds the statutory cap—which is the greater of $5,000 or 20% of the paying ex-spouse’s average monthly gross income.
Duration of spousal maintenance. The court must either set a limit on how long the paying ex-spouse must pay spousal maintenance (or court-ordered alimony), or state the maintenance will continue as long as the receiving spouse’s or child’s disability persists.
To determine the duration of spousal maintenance payments, the court must consider the above eleven statutory factors it considered when setting the award. Using a tiered system of caps, the Family Code limits the time spousal maintenance can be paid depending on the basis of the award and, sometimes, the length of the marriage. Although the court has latitude to award spousal maintenance based on the above eleven factors, the court must also be guided by the following statutory duration requirements:
- Shortest reasonable time. The payment of spousal maintenance must generally be limited to the shortest reasonable time that allows the requesting ex-spouse to earn sufficient income to provide for his or her “minimum reasonable needs.” Spousal maintenance, however, does not have to be limited in this way if there is evidence the requesting ex-spouse’s ability to earn a sufficient income is substantially or totally diminished because of (a) his or her physical or mental disability, (b) his or her duties as the custodian of an infant or young child of the marriage, or (c) another compelling impediment to earning sufficient income to provide for his or her “minimum reasonable needs.”
- Texas Family Code spousal maintenance duration caps. The cap for payment of spousal maintenance in a given situation will depend on the length of the marriage, the basis of the order, or a combination of both—as summarized in the following table:
BASIS OF AWARD
LENGTH OF MARRIAGE
|Family violence||Less than 10 years||No more than 5 years|
|Married 10+ years||Between 10 and 20 years||No more than 5 years|
|Married 10+ years||Between 20 and 30 years||No more than 7 years|
|Married 10+ years||30 years or more||No more than 10 years|
|Disabled spouse||N/A||Extended maintenance paid as long as spouse satisfies eligibility requirements|
|Disabled child of the marriage||N/A||Extended maintenance paid as long as spouse satisfies eligibility requirements|
The payment of extended spousal maintenance is discretionary with the court—even when the ex-spouse is permanently disabled. If the court orders extended spousal maintenance, the court also can order a periodic review to determine whether the disability continues to render the receiving ex-spouse unable to earn sufficient income to provide for his or her “minimum reasonable needs.” Extended spousal maintenance is also subject to a modification suit.
Termination of spousal maintenance. Spousal maintenance payments (other than payment of past due amounts) generally terminates on the (i) death of either ex-spouse, or (ii) re-marriage of the receiving ex-spouse. The fact the requesting ex-spouse is living with another person, with whom he or she has a dating or romantic relationship, in a permanent place of abode on a continuing basis may be a defense to paying spousal maintenance.
Whether you need spousal maintenance (or court-ordered alimony) to cover your “minimum reasonable needs” or you are paying spousal maintenance you believe should end, you need an experienced family lawyer with sophisticated financial training and experience. Call Board Certified Family Lawyer and CPA Sonya Coffman because . . . family matters.