Originally published May 2021
Updated December 2022
Many a family law client has sat in their lawyer's office and asked, "Will I get alimony?" (or maybe, "Will I have to pay alimony?"). As with most elements of a divorce case, the answer is, "It depends."
Like with child support, the Texas Family Code specifies factors and limits used to determine what, if any, alimony might be due. In this month's edition of Graceful Exits, we'll look at those factors and limits and discuss how you might bolster your case for alimony.
First, let's get our terms straight.
This type of support is often called alimony or spousal support. In Texas, specifically, the term of art is spousal maintenance, and I'll refer to it as such for the rest of this article. Now, let's move on and look at some common myths around spousal maintenance.
To learn more about Child Support in Texas, watch this short video.
Myths vs. Facts
Myth | Fact |
| Only women are awarded spousal maintenance. | Either party in a case can request spousal maintenance – it's not just something that ex-wives wring out of their ex-husbands. |
| Spousal maintenance lasts for life. | Lifetime payments in Texas are rare, but possible. Texas law requires a judge to order the shortest period of support necessary for the spouse needing support to become self-sufficient. Generally, the maximum period is 10 years. However, if the award of spousal maintenance is because a party cannot earn sufficient income as a result of an incapacitating disability, the court may order the support for as long as the criteria are met. |
| Spousal maintenance is fixed. | The court can change the amount of spousal maintenance if there is a substantial change in circumstances |
Qualifying
Spousal maintenance is not automatic, and Texas law begins every spousal maintenance case with the assumption that maintenance is not necessary.
To qualify to receive maintenance payments, the requesting spouse must not have enough property at the date of divorce to provide for their basic needs, and at least one of the following circumstances must exist:
- The supporting spouse has been convicted of an act of family violence against the requesting spouse (or the children of the marriage) within two years of the divorce filing.
- The requesting spouse is unable to earn enough to support themselves due to physical or mental disability.
- The requesting spouse is unable to earn enough income to support themselves, and the couple has been married more than 10 years.
- The requesting spouse is a custodial parent to a child who needs care or personal supervision, which prevents that parent from working.
Further, the requesting spouse must demonstrate that they have made a good faith effort to earn income or to pursue education or training that would make them financially independent.
Should the court find that the above requirements are met, a judge will also weigh factors like:
- The parties' abilities to meet their individual needs.
- The parties' respective education and job skills, or the time needed to complete education or training to become self-sufficient.
- The length of time the parties were married.
- The age, work history, potential earning capacity, physical condition, and emotional condition of the requesting spouse.
- Any child support being ordered in the case.
- Any waste or destruction of community property by either spouse.
- Separate property held by either spouse.
- Whether either party contributed to or supported the other's education/training or helped them enhance their earning power during the marriage.
- A stay-at-home spouse's contribution to the marriage.
- Any infidelity or cruel treatment on the part of either spouse during the marriage.
- Any history of family violence on the part of either spouse during the marriage.
Limits
The Texas Family Code sets strict limits on Spousal Maintenance. The period over which maintenance can be ordered is limited based on the length of the marriage.
Payments may be limited to five,[1] seven,[2] or 10 years.[3]
In a case where a specific condition led to a Spousal Maintenance order, that order will only continue so long as the condition that led to the support order exists.
For example, if maintenance was ordered because the custodial parent must care for an infant, maintenance may end once the child enters school.
Maintenance payments will also end if either party dies, the spouse receiving payments remarries, the spouse receiving payments cohabitates with a third-party as part of a romantic relationship, or after a review by the court (if so ordered).
The amount of maintenance payments is also limited to the lesser of $5,000 or 20% of the supporting spouse's average gross monthly income.[4]
Getting Support
It would be a disservice (and a lie) for any financial professional to guarantee they can get you a court order that includes spousal maintenance.
The facts of your case are the primary factors that influence the court's decision.
However, a CDFA like me can help you bolster your case.
A simple budgeting exercise may be all that is needed.
Using your budget, potential settlement offer, and current earning capacity, a divorce financial professional can build a Financial Plan & Outcome Projection that demonstrates the long-term impacts of not receiving support.
Much of this argument will hinge on the requesting spouse's inability to save for retirement even after they achieve self-sufficiency.
While this may sound boring and technical, a Financial Plan & Outcome Projection can be a key piece of evidence in meeting your burden of proof when arguing that you do not earn enough to support yourself, even when seemingly significant assets are present in the estate.
Forewarned is forearmed when it comes to negotiating a divorce settlement.
In some cases, spousal maintenance (along with a carefully crafted property settlement) may mean the difference between emerging on a solid footing and encountering years of struggle and uncertainty.
Don't you owe it to yourself to use whatever means you can to advocate for yourself in a zealous way? I certainly think so.
Fact-checking for this article kindly provided by Alex Hunt of Hunt Law Firm PLLC.
Robert W. Baird & Co., Inc is not affiliated with Alex Hunt or Hunt Law Firm, PLLC.
Specific details of your situation and Texas law, which is subject to change, should be reviewed by your divorce attorney.
Robert W. Baird & Co., Inc. does not give tax or legal advice.
[1] If the spouses were married at least 10 years but less than 20 or the spouses were married less than 10 years and the supporting spouse was convicted of family violence.
[2] Spouses were married at least 20 years but less than 30 years.
[3] Spouses were married at least 30 years.
[4] This is a distinction from child support, which is based on estimated net income.
RB2022-1115