Many times, during a marriage, one spouse may need to take the bulk of the responsibilities for staying home, keeping care of the household and raising the children, while the other spouse pursues an outside career.
However, when these parties end up separating and later divorcing, that can leave the one spouse who stayed home wondering how she or he will survive financially once the divorce is completed.
It is in these situations where the topic of alimony, more commonly known as spousal support or spousal maintenance, comes up the most.
When Does Spousal Maintenance Become an Issue?
Spousal maintenance usually comes up when the marriage has been longer, when one spouse was responsible for the majority of the household duties and maintenance, or when one spouse was a significantly higher earner with more assets.
Qualifying for Spousal Maintenance
Many factors go into determining whether a spouse qualifies. Of course, parties can always agree to this arrangement in a settlement agreement.
However, in the likely event that does not happen, the following considerations are taken into account:
- Did one spouse commit acts of family violence against the other spouse or the other spouse’s child during the marriage? If this occurred within two years before filing the action, it is possible the court will order spousal maintenance.
- Does one spouse not have the ability to earn enough income to provide for his or her basic needs due to a mental or physical disability?
- Was the couple married for ten years or more, and the spouse who is seeking support not have the ability to earn enough income to provide for his or her basic needs?
- Does the spouse who is seeking the spousal maintenance have custody of a child born from the marriage who has a mental or physical disability that requires extra care and supervision and prevents that spouse from earning a sufficient income?
If any of these circumstances apply, the court may order a lump sum or monthly amount of spousal maintenance for a determined period of time.
Presumption Against Spousal Maintenance
It should be understood that Texas courts start with a presumption against ordering spousal maintenance. The above circumstances are limited in scope and applicability. It is up to the spouse seeking the spousal maintenance to prove to the court that it is, in fact necessary.
He or she will need to also convince the court that the spouse has made a good effort to earn income or at least develop the schools to meet his or her basic needs during the time of separation and while the divorce is pending.
Factors Considered
Once the court decides that the spousal maintenance order is appropriate, a certain number of factors play into determining how much the support will be and how long it will last.
These factors include:
- The financial resources each spouse has at the time of the divorce;
- The ability each spouse has to independently meet his or her basic needs after the divorce;
- The education level of each spouse;
- The employment skills of each spouse;
- How long will it take for the spouse seeking maintenance to receive proper education and training to be able to obtain a job to support himself or herself;
- The length of the marriage;
- The age, earning ability, and physical or emotional health of the spouse seeking maintenance;
- Is the paying spouse also paying child support? How will a spousal support order affect that spouse’s ability to pay the child support order and still meet his or her basic living expenses?
- Did one spouse squander community property of the marriage or destroy, conceal or fraudulently dispose of joint property?
- Did the spouse who is seeking maintenance contribute to the other spouse’s education or training that allowed that spouse to earn as much as he or she does currently?
- What type of property did each spouse bring into the marriage?
- Did one spouse contribute essentially all of the homemaking during the marriage?
- Were there any acts of domestic violence, adultery or cruelty by either spouse on the other spouse?
These circumstances are all very fact specific and will require evidence to be submitted by the spouse requesting the maintenance. It is recommended a family law attorney be retained if this maintenance is wanted by the spouse.
How Are Spousal Maintenance Payments Made?
It depends on how the spousal maintenance is ordered. The spouses can always come to an agreement in a settlement for one lump sum payment.
Also, the judge can always order the one spouse to make regularly monthly payments, just as he or she would in child support, for a certain period of time. The monthly support obligation cannot be more than $5,000 or 20 percent of the paying spouse’s gross monthly income, whichever amount is the lesser of the two.
Many prefer the lump sum payment because it is more of a “one and done” deal, allowing both parties to move on after the payment is made.
How Long Does Spousal Support Last?
If the spousal maintenance order has been issued because the spouse is suffering from a physical or mental disability that makes it difficult for him or her to work, or the spouse is the custodian of the parties’ child who suffers from a physical or mental disability, the order can last for as long as those conditions exist.
However, most spousal maintenance orders are time-limited by Texas law. If the marriage was for less than ten years, and the court ordered maintenance due to the spouse committing domestic violence, the order cannot last for longer than five years.
If the marriage was ten to 20 years in length, the spousal maintenance order cannot be more than five years long. If the marriage lasted between 20 to 30 years, the order is limited to seven years. If the marriage was longer than 30 years, the spousal maintenance order is limited to ten years.
Regardless of the circumstances, the court must keep the order limited to the shortest reasonable amount of time that will give the receiving spouse the time to earn sufficient income to earn his or her basic needs.
Spousal support orders will terminate if one of the spouses dies, if the receiving spouse remarries, or if the court, after hold a hearing, determines that the receiving spouse now lives in a permanent home with another individual in a dating or romantic relationship, making the need for assistance a moot point.
Tax Implications
Spousal maintenance does come with certain tax implications. Normally, the spouse who is paying the support can deduct the payments made from his or her income.
Alternatively, the spouse who is receiving the support may be required to count the spousal maintenance as income, making this money taxable.
Contact A Family Lawyer Today
If you have questions about whether spousal support will be a factor in your case, please contact family lawyers at Scott M. Brown and Associates. You can reach us by calling (979) 318-3075 or completing our online form. We have offices in Angleton, League City/Clear Lake, and Pearland.
