UPDATED: June 19, 2018
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Alimony has very limited applications in Texas family law. Instead, Texas has provisions for spousal support which can require one spouse to continue providing support the other spouse under very limited circumstances. Anyone considering asking for alimony or spousal support in Texas should understand the difference between the two remedies, prepare a solid assessment of the marital estate, and review future enforcement options.
Historically, Texas has been an anti-alimony state. Alimony is where one spouse is required to make payments to another spouse after the marriage has ended. The Texas Family Code does not contain a specific provision for alimony. Instead, alimony is considered an agreement incident to divorce. The only way a spouse can obtain alimony in Texas is by agreement of the parties. If the parties come to an agreement, then the agreement can be referenced and incorporated into a final decree of divorce. The court can approve an agreement if the judge determines that the agreement is just and right, which is a much lower standard than the findings required for spousal support.
Some states use the terms alimony and spousal support interchangeably because they both involve the payments to the other spouse after the termination of the marriage. However, in Texas, they have very different applications, even though they are similar in structure. 'Although there is no provision for alimony in Texas law, the Texas Family Code does have a process for a spouse to petition for spousal support.
Spousal support is a relatively new concept in Texas family law. The first spousal support statute was passed in 1997. Many people felt this was a step in the right direction for abused or neglected spouses, but the statute has still adhered to some anti-alimony principles by including a presumption against the award of spousal support. Despite this negative presumption, many spouses have been successful at petitioning the family courts for the award of spousal support.
How to Petition for Spousal Support in Texas
Some states have automatic provisions for alimony or spousal support. Texas requires a spouse seeking spousal support to include the request in the petition or counter-petition for divorce and then to make specific showings. As mentioned, Texas Code has a presumption against granting spousal support. Therefore, the first step in obtaining spousal support is presenting evidence to overcome this presumption. A spouse must demonstrate that they have diligently tried to earn income to meet their basic needs or they have attempted to obtain the basic skills necessary to get employment sufficient to meet their basic needs.
Overcoming the presumption merely gets the judge to talk about spousal support. The next step is to meet the requirements for an award of spousal support. The court can only award spousal support if it finds certain conditions or events to be true. The first qualifying category is for victims of domestic abuse. If the spouse seeking maintenance can show that the other spouse was convicted or placed on deferred status for a family violence offense within two years of the divorce, or while the divorce was pending, then the spouse would qualify for spousal support.
The second qualifying category is for spouses who are unable to work because of certain circumstances. There are three sub-categories which include: the spouse having a physical or mental disability which prevents them from meeting their needs, the spouse has been married for ten years and lacks sufficient ability to provide for their basic needs, or if the spouse is a custodian of someone that requires substantial care such that they cannot work to provide for their basic needs.
Once the court decides that a spouse qualifies for spousal support, it must establish how much, how long, and how often payments are to be made. Factors that courts consider in determining whether to grant a request for spousal maintenance or how much to order for spousal maintenance include: each spouse's resources for meeting their basic living needs, the employment or education skills of each spouse, the duration of the marriage, the physical or emotional condition of the spouse seeking support, and any unusual or bad conduct by the other spouse. Courts rarely order spousal support for life, but instead, order spousal support for a limited number of years. Support obligations terminate upon the death or re-marriage of the spouse. The amount of spousal support cannot exceed $2,500.00 or 20% of the other spouse's income.
The court can also consider the division of community property or the award of alimony in deciding when and how much spousal support to order. For example, if the court has awarded sufficient property or assets of the community estate to one spouse, then the jduge may decide not to award spousal support at all because their needs are taken care of through the award of community property. The same analysis could apply if a spouse was awarded alimony through a marital agreement. Spousal support was not designed to be a windfall to one spouse, but rather to insure that one spouse is not financially abandoned in certain circumstances.
When to Ask For Spousal Support or Alimony
In theory, spousal support and alimony seem like great ideas to the receiving parties. However, the policy considerations are not as strong for enforcement, especially when compared to child support. If a parent does not comply with his child support obligation, then the parent could be charged with a state jail felony offense of failure to pay child support. A parent charged and convicted of failure to pay child support can be imprisoned from 180 days to two years in jail. As a result, there is a much stronger incentive for a parent to make their child support payments in Texas.
This enforcement remedy does not apply to alimony or spousal support obligations. Before making a final decision on whether to seek alimony or spousal support, a seeking spouse should review the potential enforcement actions, the value of the community estate, and tax/income consequences. If enforcement options are limited, then a spouse may prefer to seek a larger share of the community estate in lieu of spousal support. This division can be in the form of an actual award of the property or a cash payout. If a spouse does have enforcement options (like assets which can be attached), then they may opt to seek alimony or spousal support.
A final consideration is other benefits. If a spouse is receiving long-term, income based, government assistance, then the award of either could push the spouse’s monthly into an income bracket that would disqualify them for future services, thereby making the request for short-term spousal support counter-productive. Awards of spousal support and alimony are considered income in Texas, which could also result in a person falling into a higher tax bracket.
Texas Alimony and Spousal Support Enforcement
Before signing an agreed decree of divorce in Texas that involves alimony or spousal support, a spouse needs to understand the short and long-term enforcment options of each. Despite their similarities, the enforcement options for each can vary. Because alimony is a contractual agreement, it can be enforced like a contract in a manner provided by the marital agreement. This can be a useful tool since contractual agreements can potentially be enforced in other states. If the parties agree that an alimony obligation can be enforced through a withholding order, then the court can issue an order telling an employer of the other spouse to withhold funds for the alimony payment.
If the agreement for alimony does not include withholding as an enforcement option, then the courts cannot issue an order withholding. Conversely, the court can issue orders withholding for spousal support. The court can also use contempt as a vehicle for enforcing spousal support, whereas contempt powers are more limited for an alimony obligation. For either option, the court can potentially order non-protected property to be attached and sold by a receiver to pay the outstanding balance on the support obligation. This option only works, however, if the other spouse has property that can be attached.
How a support component is labeled in the divorce decree will have a controlling effect on any subsequent discussions or enforcement actions. Once the final order is entered or agreed to, a party is usually stuck with the label: alimony, spousal support, or community settlement award. If a spouse is considering bankruptcy or knows their ex-spouse is considering bankruptcy, the spouse should visit with a family law lawyer and a bankruptcy attorney before finalizing any agreements. Payments for spousal support cannot be discharged in bankruptcy, whereas some alimony obligations and cash settlements of community property can be discharged in bankruptcy. Effective labeling seems like a simple idea, but it can become complicated when a payment is not properly worded.
For example, if one spouse is ordered to pay $500.00 towards the car payment per month until the car was paid off, then this spouse could file for bankruptcy and request that the debt associated with this obligation be discharged. However, if the $500.00 payment is listed as a support obligation, then it would not be dischargeable in bankruptcy. Never assume that any reviewing court will know what was exactly meant by any obligation—labels insure the preservation of a variety of enforcement or disposition options.
Assessing the Community Estate
Some people go through divorces with hurt emotions and view spousal support or alimony as vehicles for punishing the other spouse. However, if the ex-spouse was not diligent at providing support during the marriage, their support habits are not likely to continue after the dissolution of the marriage. If there are sufficient assets on the front end, a spouse may want to seek a larger share of the community estate, instead of the headache of an installment plan through alimony or spousal support in Texas that might be difficult or impossible to enforce. Conversely, if all of the community property is attached to debts, then spousal support may be the better option. The best way to make an effective decision is to know the financial situation of the marital estate.