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.