Texas Divorce 101: Alimony vs. Spousal Support in Texas

When facing a divorce in Texas, a common question is whether a spouse can be awarded alimony. The term “alimony” is often confused with spousal maintenance or spousal support. While alimony is not specifically provided for under Texas law as an entitlement, it is still a possibility by agreement. Although the Texas Family Code provides eligibility for spousal maintenance in certain situations, there are specific requirements. The construct of spousal maintenance is also different from alimony. This article is aimed at explaining the basics of alimony vs spousal maintenance in Texas and pointing out the distinctions between the two.

Alimony in Texas

As mentioned above, the law in Texas does not provide for alimony as a right, although that does not mean that it is prohibited.  

While Texas has not codified the right to alimony for either spouse, it allows for parties to agree between themselves to include it as an agreed term in divorces. When agreed to, parties can include an alimony obligation between the spouses in their Final Decree of Divorce.

Since alimony can only be included when the parties agree to it, alimony obligations are not very common. When the parties agree to include it, though, they have a lot of flexibility in what it will look like for them. This means there are no eligibility requirements to meet, no cap on the amount, and no limit on duration, unlike in other states.

Since alimony is only allowed by agreement and is not included in the Texas Family Code, that also means that it is not enforceable through the Family Courts. Should the paying spouse default on payments, alimony is only enforceable under contract law.

Spousal Maintenance or Spousal Support in Texas

Definitions

“Spousal maintenance” also known as “spousal support” in Texas is an award in a divorce of periodic payments from the future income of one spouse for the support of the other spouse. Tex. Fam. Code § 8.001(1).

“Obligor” is the term used to refer to the spouse required to pay spousal maintenance.

“Obligee” is the term used to refer to the spouse who receives spousal maintenance.

 Eligibility Under the Texas Court System

To be awarded spousal maintenance, the spouse requesting the support must meet the eligibility requirements outlined in the Texas Family Code. The foundational requirement, and most important one, is that the spouse seeking support must be unable to meet their minimum reasonable needs post-divorce. Tex. Fam. Code § 8.051. Once that first requirement is met, the requesting spouse must also meet one of the following (Tex. Fam. Code § 8.051 (1-2)):

The spouse from whom support is requested is convicted of a criminal act of family violence during the marriage either during the two years prior to the suit or during the time while the divorce suit is pending; or

The spouse seeking support:

• Is unable to earn sufficient income to provide for their minimum reasonable needs because of an incapacitating physical or mental disability;
• 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
• 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.

After the court determines that the spouse seeking spousal support is eligible, it will look to numerous relevant factors to determine the nature of the support, amount, duration, and manner of payment (Tex. Fam. Code § 8.052 (1-11)):

1. Each spouse’s ability to provide for their own minimum reasonable needs independently;
2. Each spouse’s education and employment skills, and the time needed to acquire the necessary education and/or training for the requesting spouse to enable them to each acquire sufficient income, and the availability and feasibility of that education and/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 child support, if applicable;
6. Acts by either spouse resulting in excessive spending or destruction, concealment, or fraudulent disposal of community property;
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 a homemaker;
10. Marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
11. Any history or pattern of family violence.

This list is not exclusive. The court has the discretion to consider any relevant factors that show that the seeking spouse should be awarded spousal maintenance. There is a presumption that maintenance is not warranted unless the spouse seeking spousal maintenance has exercised diligence in earning sufficient income or developing the necessary skills to provide for their minimum reasonable needs during a period of separation and while the divorce case is pending. Tex. Fam. Code § 8.053. Although, with evidence to the contrary, a party can overcome that presumption.

Spousal Support in Texas: Calculating the Amount

The maximum amount of spousal maintenance that a court may order is 20% of the paying spouse’s average monthly gross income, or $5,000.00 per month, whichever is less. Tex. Fam. Code § 8.055. The Texas Family Code defines in great detail what is and what is not included in “gross income” for purposes of calculating spousal maintenance. Tex. Fam. Code § 8.055 (a-1).

It is important to remember that is the maximum amount allowed and not a required amount; spouses are free to agree on an amount that differs from this calculation.

The Duration of Spousal Support in Texas

The length of time a spouse may receive spousal maintenance depends entirely on how long the parties were married. A spouse may receive maintenance for a maximum time as listed below, but only if they meet the necessary requirements (Tex. Fam. Code § 8.054 (1)-(2)):

Spousal Maintenance for 5 Years

• The spouses were married for less than 10 years, but the paying spouse was convicted of family violence during the two years prior to the divorce suit or while the suit was pending, or
• The spouses were married for at least 10 years but not more than 20 years.

Spousal Maintenance for 7 Years

• The spouses were married for at least 20 years but not more than 30 years.

Spousal Maintenance for 10 Years

• The spouses were married for 30 years or more.

The law requires the Texas court to limit spousal maintenance to the shortest reasonable period that allows the seeking spouse to meet their minimum reasonable needs, so it’s important to remember that the above time frames are the maximum amount allowable under the law, and not a mandatory time frame in all situations. Tex. Fam. Code § 8.054 (a)(2).

Modification and Termination of Support in Texas

After the divorce is final, any party affected by the original order for spousal maintenance may file a motion requesting the Texas court to reduce the amount of spousal maintenance payments owed moving forward. Tex. Fam. Code § 8.057(a). The obligor must continue to pay the original amount ordered while the modification suit is pending until a new replacement order is entered by the Judge.

An award of spousal maintenance terminates if either party dies or if the receiving spouse remarries another person. Tex. Fam. Code § 8.056(a). If the receiving spouse is living with another person with whom they are involved in a romantic relationship, the paying spouse may take the issue back to the court, at which time the Judge must terminate the support obligation moving forward. Tex. Fam. Code § 8.056 (b).

Free Consultation: Family Law Attorney in Texas

If you have questions about spousal support in Texas, Ball Morse Lowe is here to help. We want to educate our clients and ensure that they have the best possible alimony experience. To schedule your free initial consultation, click here.