Yes, Texas is An Alimony State

The answer is “yes”, Texas is an Alimony State. However, historically, Texas has been very limiting in what circumstances and how much Alimony should be awarded by the Courts.

Alimony is often confused by what is known as “Spousal Support.” Spousal support is typically awarded during the pendency of the divorce and comes in the form of cash support or direct payments for ongoing liabilities of the parties while a divorce matter is pending. Alimony, on the other hand, is formally known as “Spousal Maintenance”.

In 1995, Texas became the last state in the nation to enact a statute that would allow a court to impose on one ex-spouse a duty to provide support to another ex-spouse out of future income. The Texas Legislature enacted the spousal maintenance spousal maintenance statute. However, the current Alimony statute is very restrictive and makes Alimony difficult for a requesting spouse to obtain. The primary purpose of the alimony statute was to provide spousal maintenance as a temporary rehabilitative financial measure for a divorced spouse whose ability to self-support is “lacking or has deteriorated through the passage of time” while the spouse was engaged in homemaking activities and whose capital assets are not sufficient to support the reasonable minimum needs of the spouse.

Finally, alimony is generally limited to a maximum duration of three years and the monthly payment is limited to not more than $2,500 and the duration is required to be the “shortest reasonable period that allows the spouse seeking maintenance to meet the spouse’s minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill”. Consequently, a court must order alimony for the shortest duration of the three years or the period proven by the evidence necessary for the spouse to be able to gain employment or develop the necessary skills to gain employment and maintain her reasonable minimum needs (except for a spouse with an incapacitating disability which is discussed further below).

Qualifying for Alimony (Spousal Maintenance)

Generally speaking, a spouse can only qualify to request Alimony only under the following circumstances:

(1) The marriage was of a duration of 10 years or longer;

(2) the spouse requesting Alimony (Spousal Maintenance) lacks sufficient property (including that awarded to that spouse in the divorce) to provide for that spouses’ “minimum reasonable needs”; and

(3) that spouse requesting alimony “clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs”.

Often the central issue is establishing exactly what is the requesting spouse’s “minimum reasonable needs”. This is obviously very case and fact specific and a good lawyer makes all the difference, whether defending or establishing a claim for spousal support and may pay for themselves in this regard alone.

Alimony under subsection 3 is primary designed to provide financial support for spouses who gave up educational or career opportunities to care for children or maintain the home and, at the time of divorce or separation, their work skills are not current and need support during a limited time to transition back into the workforce. In this category, there is a corollary obligation of the spouse requesting alimony due to her lack of “earning ability in the labor market”. As a result, it is a defense to receiving alimony if, during the period of separation and the while the divorce is pending, the requesting spouse fails to exercise diligence in seeking stable employment or exercise efforts to develop “necessary kills” to become self-supporting.

How to Calculate the 10 Year Duration Requirement

It is a common misconception that the duration of the marriage must be 10 years or more prior to the filing of the divorce. This is not the case. The duration of the marriage for purposes of the 10-year requirement encompasses the period of time from the date of marriage to the date the divorce is finalized and not simply that the marriage was of a duration. Hipolito v. Hipolito, 200 S.W.3d 805 (Tex. App.—Dallas 2006, pet. denied).

Exceptions to the 10 Year Rule & Lack Of Earning Capacity

Although the vast majority of cases involve Alimony in the “lack of earning ability” as enumerated above, Alimony may also be awarded by the Court if the spouse requesting Alimony is (a) unable to support himself or herself through “appropriate employment” because of an incapacitating physical or mental disability or (b) is the custodian of a child of the marriage of any age who requires “substantial care and personal supervision” because a “physical or mental disability” which renders it that such spouse not be employed outside the home.

In the event a spouse seeking alimony is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability (or because the spouse is the custodian of a child of the marriage who has a physical or mental disability), the court may order maintenance for an indefinite period for as long as the disability continues. Under these circumstances, the Courts generally Order periodic review hearings or a party may request a hearing for the Court to determine whether the disability then justifying spousal maintenance continues to render the spouse unable to support himself or herself through appropriate employment.

Alimony & Family Violence

A major exception to the 10 year requirement for alimony is when a spouse has been convicted or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4. If this is the case and the offense occurred (a) within two years before the date on which the suit for divorce was filed or (b) while the suit is pending then a spouse is entitled to request alimony.

It is very important when considering whether you or your spouse qualifies for alimony under the family violence exception to know that merely obtaining a protective order does not satisfy the statutory requirement of “conviction” or “deferred adjudication” for a criminal offense.

Factors Courts Consider in Awarding Alimony

It is very important to understand that just because a spouse may be entitled to request Alimony, it is not a right and remains discretionary with the court whether Alimony should be awarded an how much. Each case is highly fact specifics and very dependent upon the particular circumstances of your case.

That said, here are factors provided by the Texas Family Code that the Courts consider in whether or not to award Alimony to a spouse:

(1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently;

(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education 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 ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;

(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;

(7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;

(8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;

(9) the property brought to the marriage by either spouse;

(10) the contribution of a spouse as homemaker;

(11) marital misconduct of the spouse seeking maintenance; and

(12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.

Alimony and Common Law Marriage

Alimony is available even if it turns out that your marriage is established by “common law” or if a spouse entered into the marriage in good faith and it turns out that the marriage is void due to a prior marriage having not been dissolved. In the latter case, a spouse who entered the marriage in good faith is known in family law as a “putative spouse” and, if that spouse did not have knowledge of an existing impediment to the validity of the current marriage, Alimony can be awarded even in a suit to declare a marriage void.

Tax Implications of Alimony

It should not be overlooked that, if drafted correctly, Alimony payments are required to be included in the gross income of the payee and are deductible from the gross income of the payor. Often times this is a very central reason for a high wage earner to consider entering an agreement to pay alimony voluntarily (also known as contractual alimony) as cash exchanges, temporary spousal support, and child support made while the case is pending and pursuant to the division of the assets in a divorce are not deductible. . Thus, this feature can become a nice incentive for a high wage earning spouse to agree to pay contractual or voluntary court ordered maintenance for the long-term tax benefit.

To qualify as alimony (meaning the payments are deductible to the payor and taxable to the payee), alimony payments must meet the following requirements (see 26 U.S.C.A. § 71):

(1) the payments must be made in cash;

Note: Alimony payments are required to be in “cash”, but cash \includes checks and money orders payable on demand, received by or on behalf of a spouse (including a former spouse). Though Alimony payments may be garnished from a payor’s wages, payments of Alimony are not paid through a central state disbursement unit as are child support payments. However, the central point here is recognizing the “cash” requirement and that a transfer of services or property or a bartering arrangement including payment of debt for a spouse or the purchase of an annuity contract does not qualify as alimony.

(2) the payee must be a spouse or former spouse of the payor;
(3) the payments must be made under a divorce or separation instrument;
(4) the payments are required to cease upon the death of the payee;
(5) the payment cannot be a substitute for or constitute child support in any form;
(6) the divorce decree must provide that the payments are includible in the calculation of the gross income of the payee and are allowable as a deduction by the payor as provided by 26 U.S.C.A. § 215;
(7) the parties must not be members of the same household at the time alimony payments are made;
(8) for alimony payments exceeding $15,000, the payout period must be at least 3 years; and
(9) a joint return cannot be filed by the payor or payee, even if they are considered legally married under state law.

Spousal Maintenance: Cases Filed on or After September 1st, 2011

Generally speaking, until September 1st, 2011 spousal maintenance was only available for up to three years. However, the 82nd Texas Legislature modified the spousal maintenance statute significantly beginning with any and all cases filed on or after September 1st, 2011.

Below is a summary of the modifications which should be immediately taken into consideration by spouses considering divorce – as filing before September 1st, 2011 or after could have a significant impact on a claim for alimony.

(1) Alimony Available for up to 5 Years

(a) Family Violence: Alimony will now be available for up to five years if the marriage was of a duration of 10 years or less and a spouse from whom maintenance is sought was convicted or placed on deferred adjudication for a criminal offense that constitutes an act of family violence (see Tex. Fam. Code § 71.004);

(b) Marriage of 10 Years – 20 Years: Alimony will now be available for up to 5 years, where a spouse otherwise meets the eligibility requirement, for marriages lasting 10 years, but not more than 20 years.

(2) Alimony for up to 7 Years

Alimony will now be available for up to 7 years, where a spouse otherwise meets the eligibility requirement, for marriages lasting 20 years, but not more than 30 years.

(3) Alimony for up to 10 Years

Alimony will now be available for up to 10 years, where a spouse otherwise meets the eligibility requirement, for marriages lasting 30 years or more.

(4) Maximum Amount of Payments Increases from $2,500 to $5,000

The legislature modified the amount of alimony as well, increasing the maximum from $2,500 to $5,000. Of course, the amount of the payment remains the lesser of the $5,000 or 20% of the spouse’s average monthly gross income. Further, the legislature added specifics on what forms of revenue are included in “gross income” – which includes just about any source of income “actually being received” and is very similar to determining income for child support.

Gross Income includes the following:

(a) All wages and salary;
(b) Interest, dividends, and royalties;
(c) Net rental income; and
(d) “All other income actually being received” from severance, retirement benefits, pensions, trust income, etc …

However, gross income will NOT include the following:

(a) Return of principal or capital;
(b) Accounts receivable;
(c) Federal public assistance benefits;;
(d) TANF benefits;
(e) Payments for foster care of a child;
(f) VA disability benefits, and
(g) Foster care but does not include VA
(h) Supplemental security income (SSI);
(i) Social security benefits and disability benefits; or
(I) Worker’s compensation benefits

(5) Suits for Overpayment of Alimony Added

The legislature has now added a provision to allow for suit to recover overpayment of an obligor’s spousal maintenance obligation. Provided an obligor is not in arrears at the time of the suit for overpayment, an oblige can be required to return any overpayments made that exceed the amount of the alimony or spousal maintenance ordered by the Court. This is true regardless whether the payments were made before, on, or after the date the alimony obligation terminated.

In the event a spouse fails to comply with an order to return any overpayments ordered by the Court, except where “good cause is shown”, the Court is required to make the oblige spouse pay all attorneys fees and costs of court.

It is worth noting that although this provision takes effect on September 1st, 2011 it applies to any spousal maintenance Order rendered on, after, or before September 1, 2011.

Put the Experience of James W. Evans Law Office to Work

Whether your area fighting to receive alimony or attempting to defend yourself from the obligation to pay alimony, you need experienced legal representation. Establishing or defending claims for alimony can be very complicated. Jimmy Evans has over 17 years of experience and is Board Certified in Family Law by the Texas Board of Legal Specialization. Each case is unique. We work with a team of independent professionals to evaluate each case on the needs of your particular circumstances. to help determine appropriate levels of spousal maintenance for your particular case.

Contact our Austin Alimony attorneys at James W. Evans Law Office today. We offer free initial consultations. Call us at (512) 628-2550 or email Mr. Evans directly at jimmy@evansflg.com.