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Is Texas an alimony state?

The answer is definitively a “yes”, that Texas is an Alimony State. However, under Chapter 8 of the Texas Family Code, alimony is known as “Spousal Maintenance”.

Alimony or Spousal Maintenance is often confused with “Spousal Support, which is typically known as “interim spousal support” or “temporary spousal support” which is awarded during divorce proceedings and comes in the form of cash support or direct payments for ongoing liabilities of the parties, while the divorce is pending.  Alimony or Spousal Maintenance, on the other hand, lasts longer-term and typically long after a divorce has been finalized.

In 1995, Texas became the last state in the nation to enact a spousal maintenance statute, which allows court to impose on one ex-spouse the duty of providing support out of future income to the other ex-spouse. However, the current spousal maintenance statute is very restrictive and makes alimony or spousal maintenance difficult for a requesting spouse to obtain, requiring a party to prove eligibility for very specific criteria.

The main purpose of the spousal maintenance statute was to provide spousal maintenance, as a temporary “bridge” of sorts to provide financial support for a divorced spouse whose ability to self-support is “lacking or has deteriorated through the passage of time” while that spouse was engaged in homemaking activities, and whose assets are not sufficient to meet reasonable minimum needs.

Spousal maintenance is limited to a maximum of $5,000 or 20 percent of the spouse who is obligated to pay average monthly gross income – whichever is less.  The duration of payments is up to five years for a marriage of 10 years or more, seven years for a marriage of 10 to 20 years or up to 10 years for a marriage of 30 years or more.  However, the family code dictates that the duration ordered for the payments shall 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 shorter of two periods: either for three years, or for the length of time proven necessary for the spouse to gain employment or develop the necessary skills to gain employment and maintain his/her reasonable minimum needs (except for a spouse with an incapacitating disability, which is discussed further below).

How to qualify for alimony (spousal maintenance) in Texas

Generally, a spouse can 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 the 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 in establishing exactly what is the requesting spouse’s “minimum reasonable needs”. Of course, that is a very case- and fact-specific question, and a good lawyer makes all the difference, whether in defending or in establishing a claim of spousal support.  Skilled lawyers may “pay for themselves” in that respect alone.

Alimony under subsection 3 is primarily designed to provide financial support for spouses who gave up educational or career opportunities to care for children or maintain the home, care for a disabled child or have disabilities or medical needs themselves that prohibits that spouse from working, or otherwise a spouse who’s work skills at the time of the divorce or separation are not current and therefore require the spouse to receive support during the transition into the workforce. With that comes an obligation on the part of the spouse requesting alimony due to her lack of “earning ability in the labor market”: during the period of separation and the while the divorce is pending, the requesting spouse must exercise diligence in seeking stable employment or must exercise efforts to develop the “necessary skills” to become self-supporting.  Failure to do so may be a defense against an alimony claim.

How to calculate the 10-year duration requirement for alimony

It is a common misconception that the duration of the marriage must be 10 years or more prior to the filing of the divorce. That 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 of 10 years.  Hipolito v. Hipolito, 200 S.W.3d 805 (Tex. App.—Dallas 2006, pet. denied).  This is often a misconception by clients, who believe that if they file their divorce prior to the 10 years duration of the marriage, that their spouse would not qualify for spousal maintenance.  This, emphatically, is not true.  If the marriage was of a duration of 10 years prior to the divorce being final and the criteria are otherwise met, a qualifying spouse may request spousal maintenance from the court.

Exceptions to the 10-year rule, and lack of earning capacity

Although the vast majority of cases involve alimony or spousal Maintenance 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 and 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, a spouse is entitled to request alimony.

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

How do courts reach a decision on awarding alimony?

It is important to understand that just because a spouse may be entitled to request alimony, it is not a right and remains at the discretion of the court whether and how much Alimony should be awarded. Each case depends on the circumstances.

Here are the factors provided by the Texas Family Code that the Courts consider in deciding whether 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.

Spousal Maintenance and common-law marriage

Alimony or spousal maintenance is available even if it turns out that a marriage is established by “common law,” or if a spouse entered 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.

Spousal Maintenance and Taxes

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 this is a central reason for a high 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. That can serve as an incentive for a high-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 tax-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.

Gross Income includes the following:

  1. All wages and salary;
  2. Interest, dividends, and royalties;
  3. Net rental income; and
  4. “All other income actually being received” from severance, retirement benefits, pensions, trust income, etc …

However, gross income will NOT include the following:

  1. Return of principal or capital;
  2. Accounts receivable;
  3. Federal public assistance benefits;
  4.  TANF benefits;
  5.  Payments for foster care of a child;
  6. VA disability benefits, and
  7. Foster care but does not include VA
  8. Supplemental security income (SSI);
  9. Social security benefits and disability benefits; or
  10. Worker’s compensation benefits

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 attorney’s 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.

Let Evans Family Law Group help you through the challenges of alimony

Whether your area fighting to receive alimony or attempting to defend against an obligation to pay alimony, you need experienced legal representation. Establishing or defending claims of alimony can be 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 circumstances, to help determine appropriate levels of spousal maintenance for your case.

Contact the Austin alimony attorneys at Evans Family Law Group today. We offer free initial consultations. Call us at (512) 628-2550.