Texas Divorce 101: Alimony vs. Spousal Maintenance

When facing a divorce in Texas, a common question is whether or not a spouse can be awarded alimony. The term “alimony” is often confused with spousal maintenance or 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, which has specific requirements and is a different construct than alimony. This article is aimed at educating you on the basics of alimony and spousal maintenance in Texas and pointing out the distinctions between the two.

Alimony

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 alimony, though, they have a lot of flexibility in what the alimony will look like for them. This means there are no eligibility requirements to meet, no cap on the amount, and no limit on duration.

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

Spousal Maintenance

Definitions

“Spousal maintenance” 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). This term is often also referred to as “spousal support.”

“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

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 his or her 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 his or her 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 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 his or her 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 him or her to each 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, and 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 maintenance has exercised diligence in earning sufficient income or developing the necessary skills to provide for his or her 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.

Calculating Support 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.

Duration

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 period as listed below, but only if they meet the necessary requirements (Tex. Fam. Code § 8.054 (1)-(2)):

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.

Maintenance for 7 Years

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

Maintenance for 10 Years

• The spouses were married for 30 years or more.

The law requires the court to limit spousal maintenance to the shortest reasonable period that will allow the seeking spouse to meet his or her minimum reasonable needs, so it is important to remember that the above time frames are simply 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

After the divorce is final, any party affected by the original order for spousal maintenance may file a motion requesting the 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 he or she is 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).

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