If you are considering a Texas divorce, spousal maintenance (alimony) may be a significant issue in your divorce proceeding. Historically, Texas law imposed substantial limits on a court's ability to make spousal maintenance orders, which were far more restrictive than many other states. These included a maximum three (3) year duration for awarding spousal maintenance as well as a requirement that the party seeking spousal maintenance establish that he or she was unable to support oneself through appropriate employment. Under the prior standard, employment counseling was generally required to determine a spouse's employability.
The law governing spousal maintenance in Texas has been modified substantially by the passage of HB901, which became effective September 1, 2011 and amends Texas Family Code §8.051. Under the new law, the focus of the inquiry for determining spousal maintenance has changed, and the absolute three (3) year limit on the duration of spousal maintenance has been adjusted to a sliding scale based on the length of the marriage. The revised Texas law does not turn on the issue of whether a spouse is employed or employable, but whether the spouse is earning enough to provide for his or her reasonable needs.
The revised law incorporates a sliding scale to determine the maximum duration of spousal maintenance based on the length of the marriage. The sliding scale is as follows:
• Marriage 10-20 Year Duration: Maximum 5 years spousal maintenance
• Marriage 20-30 Year Duration: Maximum 7 years spousal maintenance
• Marriage Exceeding 30 Years: Maximum 10 year spousal maintenance
Spousal maintenance may also be ordered where the spouse that will be ordered to pay has been convicted of an act of family violence or received deferred adjudication for such an act during the two years preceding the filing for marital dissolution (divorce). The new law makes it clear that the act of domestic violence must have occurred during the time the parties were actually married. Where the basis for seeking spousal maintenance is domestic violence, there is no requirement that the spouse seeking spousal maintenance establish that the he or she is unable to provide for his or her reasonable needs.
The other change in spousal maintenance under the new law impacts contempt proceedings. While contempt proceedings may still be used to enforce spousal support payments, this is only true if the support order is within the statute's sliding scale framework. This is an important issue because sometimes parties negotiate a longer duration of spousal support as part of a global settlement of all financial issues. If your marriage was 12 years in duration, for example, you might negotiate a 10 year term of spousal maintenance based on other property concessions. However, you may be relegated to suing for breach of contract if your spouse fails to make spousal maintenance payments outside of the duration specified under the new statutory timeframes. Breach of contract remedies have less teeth and remove the quasi-criminal impact of a contempt proceeding.
When a court considers the amount of spousal maintenance to be awarded, the court will consider the following statutory factors:
1) Recipient spouse's ability to provide for his or her own needs after the divorce and division of property
2) Training and education of the recipient spouse and time and availability involved in obtaining such training and education to provide for the spouse's reasonable needs
3) Length of the marriage
4) Factors such as the age, physical and mental condition and work history of the recipient spouse
5) Ability of each spouse to provide for their own reasonable needs given any child support orders
6) Waste committed by either spouse
7) Contributions made by one spouse to the earning capacity of the other spouse
8) Property either spouse brought to the marriage
9) Efforts of a spouse as a homemaker
10) Misconduct in the marriage such as infidelity or cruelty
[Derived from Texas Family Code §8.052]
Spousal maintenance can be a critical financial resource for a recipient spouse, which can be essential to rebuilding after a divorce in Houston, Galveston or anywhere throughout Texas. A spousal maintenance order that is too high or that is of longer duration than is appropriate can work an enormous hardship for the paying spouse.