This article provides a brief overview on Texas law concerning post-divorce alimony in Texas. Laws differ from state to state and individual circumstances vary, so you should consult with a qualified family law attorney in your area for specific advice on your particular situation. Additionally, this article deals only with post-divorce alimony. It does not address temporary alimony, which is provided for under a different provision of the Texas Family Code.
Two Kinds of Alimony: Contractual and Court Ordered Maintenance
There are two kinds of post-divorce alimony in Texas: contractual alimony and court ordered maintenance. The Texas Family Code also provides authority for the court to order temporary alimony which occurs while a divorce is pending. However, temporary alimony is outside the scope of this article and will not be addressed.
Contractual alimony is based on an agreement between the parties in their divorce decree. Since contractual alimony must be based on an agreement of the parties, there are no limits to the possible amount or duration of the alimony.
Court Ordered Maintenance
Court ordered maintenance is provided for by Texas Family Code Chapter Eight. Although actually awarded in only a small percentage of Texas divorces, the court has the right to order one spouse to pay the other post-divorce maintenance in either of two circumstances:
1. The payor spouse either received deferred adjudication or was convicted of a crime constituting family violence within two years of the filing of the divorce case, or
2. The parties have been married at least ten years and the receiving spouse has some kind of financial limitation (disability, unable to work because caring for the party’s child, or lacks earning ability to meet minimum reasonable needs).
The monthly amount of court ordered maintenance is capped at the lesser of: a) $5,000 or b) 20% of the monthly payor’s gross income.
If the marriage lasted for more than 10 but less than 20 years, the maximum duration of court ordered maintenance is five years. If the marriage lasted for more than 20 but less than 30 years, the maximum duration of court ordered maintenance is seven years. If the marriage lasted for more than 30 years, the maximum duration of court ordered maintenance is ten years. The only exception is when maintenance is ordered as the result of a disability, in which case the duration can potentially extend indefinitely.
A significant factor to consider is whether the requesting party can meet the statutory requirements, absent an agreement. The statute allows for maintenance only when the specific statutory circumstances have been proven. There are several appellate cases that have reversed trial court decisions ordering maintenance when the requesting party did not provide sufficient proof that the standard had been met.
In cases where there is a large amount of community property, one of the most effective arguments in attempting to defeat a maintenance claim is that the requesting party will have ample resources to provide for their needs since the party will receive a significant amount of assets from the division of property.
Another commonly effective argument used against the award of alimony is that during the pendency of the divorce the requesting party has not made significant attempts to either obtain employment or obtain training that would allow the party to obtain employment.
As an example, lets take a divorce case where the wife is requesting maintenance on the grounds that the marriage is longer than ten years and that she lacks the earning ability to meet her minimum reasonable needs. If the case has been pending for several months and at the time of trial wife has still made no effort to obtain employment or improve her job skills the husband’s attorney can argue that wife has failed to take steps necessary to improve her situation. The court might then find that she is “unable” to meet her reasonable minimum needs and instead conclude that she is unwilling to take the necessary steps in order to provide for her own support.
Of course, post-divorce alimony is only one part of your divorce case and it is important to consider it within an overall comprehensive view of the property division. For my tips on how to best prepare yourself to get a fair property division download my free 20 page report that outlines what I consider to be the seven keys to a fair property division in your Texas divorce. If you have minor children you should also take a look at this post on calculating child support in Texas and this one for suggestions on how to break the news of divorce to your children.
Alimony in Texas is an important and complicated issue. It can be used as an effective settlement tool and can potentially be a significant trial issue. For someone involved in a Texas divorce case with a potential alimony issue, the issue should be discussed in detail with an experienced divorce lawyer.
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