Divorce can be an incredibly emotional process. Handling the legal process which ends a relationship originally meant to last a lifetime can be exhausting, especially if the process is contested by one party, as this can lead to additional complexities.
Even when it's over, and you've been issued a Decree of Divorce by a court to signify that your marriage is officially in the past, there are still probably going to be terms of the divorce agreement or court order that need to be satisfied by either you or your former spouse. Even when your marriage is over, the divorce process still runs in the background, ensuring that all of the terms of the divorce are carried out.
One of the terms of the divorce agreement or court order that takes place after the conclusion of the court process is spousal maintenance. Some states call this “alimony,” while others call it “spousal support.” In Texas, it's called “spousal maintenance.” Different terminology aside, the issue is the same – one spouse will have to provide the other financial support for a certain amount of time after the divorce has completed.
Spousal maintenance can be determined either through a part of the divorce agreement that you are your ex-spouse create and present to court, or can be determined by the judge, in a court order. If you and your ex-spouse can come to an agreement on the financial support to be paid without having the judge make an order, it's called “contractual alimony.” Contractual alimony can have more flexible terms that more closely fit the needs of the parties, because it doesn't have to comply with the legal spousal maintenance requirements that a court order would.
While it might be difficult to come to an agreement on the highly contested issue of post-divorce financial support, being able to sort it out with your ex-spouse in the divorce agreement, rather than taking it before the judge, can lead to a better outcome for you.
If you and your ex-spouse are not able to come to a decision on post-divorce financial support, it will be up to the judge of your divorce proceedings to reach a decision. This decision will be made in a court order, and will set out the whether there will be spousal maintenance, how much it will be, and how long it will last.
Presumption Against Spousal Maintenance
The first thing that the judge will have to determine is if someone is eligible for spousal maintenance. In Texas, there's a presumption that there will not be any spousal maintenance – someone has to bring up the topic and then convince the court that they should be awarded spousal maintenance, in order for this to be awarded.
Once the issue of spousal maintenance is raised, the court will have to determine if the person making the claim is eligible to receive it. According to the Texas family code, there are two situations which make someone eligible to receive spousal maintenance:
1. The other spouse has been convicted, or received a deferred adjudication, for a crime of family violence that occurred either within two years before the date that the divorce was filed, or while the divorce was pending, or
2. The spouse seeking spousal maintenance can't earn enough to meet their basic needs because either
a. They have a physical or mental disability,
b. They provide care for a child of the marriage that requires substantial and personal supervision due to a physical or mental disability, or
c. The marriage has lasted 10 or more years
Only if the person claiming spousal maintenance can prove themselves eligible will their claim move onward.
Amount of Spousal Maintenance
Once eligibility is established, the court would look to a variety of factors to determine how much spousal maintenance is due. These factors include:
· The length of the marriage,
· Property that each spouse brought to the marriage,
· A history of family violence,
· Any acts of adultery,
· Each spouse's finances at the time of the divorce,
· Each spouse's ability to find a job, such as their educational background and work experience,
· Child support payments,
· How each spouse spent family money during the marriage,
· Whether either spouse acted fraudulently during the divorce proceeding,
· Whether one spouse acted as a homemaker during the marriage, and
· Whether one spouse contributed to the education, career, or income of the other
Weighing these factors, the court will come up with a monthly spousal maintenance payment. However, the monthly payment cannot be more than $5,000, or more than 20% of the paying spouse's average gross monthly income.
Duration of Spousal Maintenance
There are also rules that the court has to abide by, when it sets how long spousal maintenance payments will last after a divorce. The maximum duration depends on why the spouse is eligible for maintenance payments:
· If the marriage lasted more than 10 years, then the length of the marriage will determine how long the spousal maintenance payments can last:
Married between 10-20 years
Maximum duration of 5 years
Married between 20-30 years
Maximum duration of 7 years
Married 30 years or more
Maximum duration of 10 years
· If one spouse is eligible for spousal maintenance because of family violence, then the maximum duration of maintenance payments will be 5 years.
· If the spouse is eligible for maintenance due to their own physical or mental inability or that of the child they're caring for, then there's no maximum duration for payments.
Dreyer & Mazsheri
Spousal support is a highly contentious issue in even the most amicable divorces, and can affect both parties for years after the divorce has been finalized. Because of its long-term impact, getting a solid maintenance agreement that benefits you is an investment in your future. Having one that does not suit your needs, on the other hand, can create financial problems and headaches for years to come.
Call Dreyer & Mazsheri to tap into their experience and their ability to craft strong contractual alimony agreements, or to fight for you in divorce court over spousal maintenance requirements: (210) 472-1400.