Spousal Support In Texas
Texas Judges have the authority to order one spouse to pay spousal support; however, this is the exception rather than the rule. Unfortunately, Texas has been slow to enact statutory provisions that advocate for spousal support and that’s part of the reason why it’s difficult, but not impossible, for some to be granted with a court order for support in their divorce case.
Eligibility for Support
A Judge may order one party to pay spousal support to the other party in very limited situations and, if so, usually only for a finite period of time after divorce. If you are the one seeking maintenance, you will have the burden to show the Judge that you lack sufficient skills and property, after including your separate property, to provide for your minimum needs and will have to prove one of the following:
You are unable to earn a living due to a debilitating injury such as paralysis from a serious accident or that you suffer from a mental condition such as depression, bipolar disorder or post-traumatic stress. You can and should present these situations as support for a spousal support claim.
You are a stay-at-home mom or dad, which is common in marriage, and that you've been out of the workplace for years caring for the children and supporting your spouse’s career advancements. A divorce may leave you in a position where you can't get a job easily and you might have to rebuild your career. If you can't generate enough income to support yourself and were married for at least 10 years, you can argue for spousal support.
You have custody of a child with special needs who is disabled mentally or physically, a child who requires your substantial care and supervision. This argument can be sufficient for the court to grant you spousal support.
Presumption Against Spousal Support
There is a presumption AGAINST the court awarding spousal support to be paid after divorce. Specifically, Section 8.053, Texas Family Code, dictates against such support being awarded unless you've exercised diligence in showing the court your eligibility for such support.
If, during the marriage, you were a stay-at-home mom or dad who gave up your career to take care of the kids and advance your spouse’s career and earning potential, you’ll need to overcome this presumption. If your kids are in grade school or high school, still living with you and under your care, you could demonstrate due diligence by getting a part time job. If this job isn't sufficient to meet your minimum needs, then you could argue for spousal maintenance to make up the difference.
In a similar vein is the aspect of developing the necessary skills to earn a living. To overcome this hurdle in the statute you could take courses at a local community college or online to develop new skills such as getting a real estate license or upgrading your existing skills to make them current.
It's critical that you work with your divorce lawyer to come up with a strategy for spousal support that is in line with your circumstances. Judges will recognize your efforts made in good faith and be inclined to award an amount of support, as well as a timeframe, that allows you to become independent and move on with your life. Without such efforts it will be easy for the judge to deny your request for support and you don’t want to be in that position.
What Amount of Spousal Support Will be Awarded in my Divorce?
Once you have overcome the presumption against awarding spousal maintenance, you will need to prove how much you need to meet your minimum needs. Judges in divorce cases have some flexibility in deciding the amount of alimony, however there’s a cap on how much your spouse can be ordered to pay. A judge may not order support that requires your spouse to pay more than $5,000 per month or 20% of that paying spouse’s average monthly gross income, whichever amount is less.
How and When do I get Paid Spousal Support?
If your spousal support was court ordered, typically the court will order your former spouse to pay an amount to you on a monthly basis, either by check or via electronic deposit into your account.
If your divorce was settled prior to trial, through negotiations with the lawyers on both sides or at mediation, you’ll generally get paid monthly, either by check or bank transfer. In these circumstances your former spouse is contractually obligated to pay.
What can I do if my Spousal Support is Not Paid or is Routinely Paid Late?
If you’re a former spouse who was receiving support and you find that the payments have suddenly stopped or your former spouse routinely is not abiding by the court orders and pays late, there are specific steps that you can take to remedy the situation. Before taking any steps, you need to consider how your support was mandated. There are two ways that spousal support can granted, by court order or contractually as a result of negotiations.
If your divorce went to trial and the judge awarded you spousal support, it would have been granted by way of a court order. Your action in this situation is to hold your former spouse, the obligor, in contempt. This is done by the filing with the court a Petition for Enforcement of the court’s order that mandated the payments. An experienced divorce lawyer would use a tactic called coercive contempt as a way to encourage your former spouse to comply.
Further, your attorney could request that the Judge order all future spousal payments be withheld from his or her paycheck. This is done through a wage withholding order sent to that employer, ordering the employer to withhold from the obligor’s, the person owing the support, paycheck the same amount of spousal support due on the same frequency as your former spouse was ordered to pay. The court can also order withholding for any back spousal support payments missed and order the employer to remit those payments by way of electronic funds transfer so that you'll not have to rely on the mail, or experience other delays.
If your divorce was settled prior to trial, through negotiations with the lawyers on both sides or at mediation, then you would have to bring a breach of contract claim against your former spouse. This is a separate and new lawsuit filed to enforce that contract, similar to a lawsuit that might be brought for breach of any other contract you had entered into. If you are forced to incur expense in hiring a lawyer to do this, your lawyer can seek not only the past spousal support that is due you, but also interest due on that amount owed you, as well as a wage withholding order for the spousal support to be taken out of his or her pay by the employer so this issue does not come up again. You can also request attorney fees for having to incur the expense of enforcing the payments owed to you. If the employer fails to abide by the court’s order, which seldom occurs, then that employer could be financially liable for such failure.
How Long can Spousal Support be Ordered to be Paid?
Spousal maintenance terminates on the death of either spouse or on their remarriage to another. The judge has no ability to order anything more.
It also terminates if the Court determines that you cohabitate with another person with whom you have a dating or romantic relationship in a permanent residence on a continuing basis. This was enacted by the Texas legislature to prevent someone from receiving spousal maintenance to meet their reasonable needs, when someone else is paying to meet those needs, thereby taking away the burden of paying spousal support when it’s no longer necessary.
Modification of Maintenance Order
After a divorce is granted wherein one party has been ordered to pay support to the other, the amount can be reduced on a showing of a material and substantial change in circumstances. If, after obtaining a diploma or completing an online course, you get a part-time or full-time job the amount of support can be reduced by way of a Modification of Maintenance Order as defined in section 8.057 of the Texas Family Code.
Modification of maintenance orders can themselves be changed; you can think of this as a process of eliminating the spousal support that was ordered by the court. The reason why support was granted in the first place was to allow the recipient time to become self-sufficient after divorce. Modifications to prior maintenance orders can be made retroactive, but only back to the date of the filing of the request to modify the maintenance, and not before that date.