Understanding Alimony Considerations in Your Texas Divorce

If you and your spouse haven’t resolved all matters in your divorce, it’s likely to be deemed “contested.” In these instances, should your divorce proceed to court, the Judge may base decisions on alimony if either party seeks spousal support. Understanding the nuances outlined in the Texas Family Code 8.051 is crucial in such scenarios, as it delineates the factors influencing alimony determinations. The following details will offer insight into what you can expect regarding alimony and help you navigate contested divorces under the purview of the Texas Family Code 8.051.

Is Alimony in Texas Common Place?

In Texas alimony is called spousal maintenance. Most cases do not involve awards of post-divorce spousal maintenance even if a party may be eligible. Spousal maintenance is at a judge’s discretion and often a judge will determine that it is not appropriate.

Eligibility for Maintenance under Texas Family Code 8.051

In Texas, a spouse may be eligible for spousal maintenance under Texas Family Code 8.051 if a spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and:

1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section 71.004, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred:

(A) within two years before the date on which a suit for dissolution of the marriage is filed; or

(B) while the suit is pending; or

(2) the spouse seeking maintenance:

(A) is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;

(B) has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or

(C) is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.

Factors in Determining Maintenance

If a spousal meets one of the above eligibility requirements, a divorce Judge will examine a number of factors to determine whether an award of spousal maintenance would be:

1. Appropriate under the circumstances
2. The duration
3. The amount
4. And manner of payments

Texas Family Code section 8.052 sets out the factors that a divorce court will consider including:

1. each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on the 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, as defined by Section 71.004

What Texas Family Code 8.051 Says About Spousal Maintenance Presumption

There is a rebuttable presumption that maintenance under Texas Family Code 8.051(2)(B) is not warranted unless the spouse seeking maintenance has exercised diligence in:

1. earning sufficient income to provide for the spouse’s minimum reasonable needs; or
2. developing the necessary skills to provide for the spouse’s minimum reasonable needs during a period of separation and during the time the suit for dissolution of the marriage is pending.

Duration of Spousal Support

Should an ex-spouse be awarded spousal maintenance there is generally a cap on how long a judge can award spousal maintenance.

A Texas Divorce Court under Texas Family Code Section 8.054(2):

Shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse’s minimum reasonable needs, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs is substantially or totally diminished because of:

1. physical or mental disability of the spouse seeking maintenance;
2. duties as the custodian of an infant or young child of the marriage; or
3. another compelling impediment to earning sufficient income to provide for the spouse’s minimum reasonable

Amount of Spousal Maintenance

Under Texas Family Code Section 8.055:

A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:

1. $5,000; or
2. 20 percent of the spouse’s average monthly gross income.

Things that a Judge must consider when deciding how much to award in post-divorce spousal maintenance include:

1. the financial resources of each spouse after divorce (including separate property);
2. What effect paying child support or spousal maintenance will have on both spouses’ ability to pay their bills;
3. one spouse’s contribution to the other’s education, training, or increased earning power;
4. the age, employment history, earning ability, and physical and emotional condition of the requesting spouse;
5. each spouse’s education and employment skills and how long it would take for the spouse asking for maintenance to get education or training;
6. whether either spouse inappropriately spent community funds or disposed of community property during marriage
7. homemaker contributions;
8. marital misconduct of either spouse; and
9. family violence.

Spousal Support While the Divorce is Ongoing

A Judge may order spousal maintenance while a divorce is ongoing during Temporary Orders. The requirements for Temporary Orders spousal support are far less stringent and much easier to get. This is partly due to:

1. the duty to spouses to support each other during the marriage and
2. the presumption that all property is community property.

Conclusion

Navigating contested divorces under the purview of the Texas Family Code 8.051 entails careful consideration of alimony provisions. When unresolved issues persist between spouses, leading to contested divorces, the court may intervene to determine alimony if either party seeks spousal support. Understanding the intricacies outlined in the Texas Family Code 8.051 is paramount for individuals embroiled in such legal proceedings, as it delineates the factors considered by the court when awarding alimony. By familiarizing themselves with these provisions, individuals can better prepare for court proceedings and advocate for their interests effectively.

Moreover, recognizing the role of Texas Family Code 8.051 underscores the importance of legal counsel in contested divorce cases. Legal professionals can provide invaluable guidance on navigating the complexities of alimony determinations, ensuring that individuals are well-equipped to present their case in court. With their expertise, individuals can navigate the legal landscape with confidence, striving to secure a fair and equitable resolution in accordance with the provisions outlined in the Texas Family Code 8.051.

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Bryan Joseph Fagan( Attorney )

Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.

Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.

His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.

Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.