What is Spousal Maintenance and when is it available?

Texas has very limited laws regarding the availability of spousal maintenance. Spousal maintenance is defined under the Texas Family Code as “an award… of periodic payments from the future income of one spouse for the support of the other spouse.” (Tex. Fam. Code § 8.001) In other words, “spousal maintenance” is something of a misnomer – it is actually paid by a former spouse after the divorce is granted and the two persons are no longer married.

Under Texas law, a person is only eligible to receive spousal maintenance if:

1) the other spouse was convicted of an act of family violence that occurred during the two years immediately before the date on which the petition for divorce was filed, or

2) the marriage lasted longer than ten years and the spouse to receive maintenance cannot support himself or herself.

In general, a Texas court may not order spousal maintenance for longer than three years after the divorce is final, and the court will limit the duration of payments to the shortest period of time possible. However, a person may be entitled to receive spousal maintenance for a longer period of time if he or she has an incapacitating physical or mental disability, or is caring for a child with such disability.

Factors in determining whether to award spousal maintenance include:

* the relative financial resources of both spouses,

* the duration of the marriage,

* the age and earning ability of the spouse seeking maintenance,

* the contribution of the spouse as a homemaker,

* infidelity or fraud during the marriage,

* the spouses’ respective education and employment skills, and

* one spouse’s contribution to the other’s earning power.

These factors are not exclusive. In Texas, there is a presumption against spousal maintenance, and it is not available unless the person requesting spousal maintenance has been diligent in seeking employment and improving his or her job skills and employability.

Lastly, the amount of spousal maintenance cannot exceed the smaller of $2,500 per month or twenty percent of average gross income per month of the spouse who is ordered to make payments.

In summary, spousal maintenance is not available unless the party requesting such payments can overcome the presumption against an award of spousal maintenance by providing evidence supporting the various factors, and – even when awarded – the payments are for a limited amount and only for a limited time.

This blog was prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

What is Spousal Support and when is it available?

In contrast to “spousal maintenance” (see related blog topic), Spousal Support in Texas is awarded on a temporary basis while a divorce suit is still pending. This temporary spousal support is meant to provide a financially dependent spouse with income during the divorce while the parties are working on a resolution to their financial situation.

Temporary spousal support is based on the common law duty to support one’s spouse during the marriage, by providing “necessaries” such as food, clothing, shelter and medical care. As a result, an award of temporary spousal support can be taken into account when the court divides the spouses’ community property, since the spouse who is providing such spousal support is entitled to reimbursement from their community estate.

To be entitled to receive temporary spousal support, the requesting spouse must demonstrate that: (1) the parties have a valid marriage, (2) he or she is unable to pay for necessary expenses, and (3) the other spouse can afford to pay the amount of spousal support sought.

If the spouse receiving temporary spousal support remains unable to pay for necessary expenses at the time of the final hearing/trial, he or she should consider requesting spousal maintenance for a period of time after the divorce is granted.



Blog prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

Spousal Maintenance, Alimony and Tax Tips for Texas Divorces

Spouses can agree to the payment of spousal maintenance (or what is basically alimony in Texas) . However, spouses in the process of a divorce would regard a Court Order requiring the payment of spousal maintenance to be an unfavorable scenario. This may not actually be the case. Because of how the IRS treats the payments for tax purposes, this may actually be favorable for both spouses. If structured properly, the paying spouse (Obligor) may be able to deduct the payment from his or her income. As a result, this liability actually removes income from the paying spouse's reported income, thereby reducing the Obligor's tax liability. The effect of this over time could be significant, especially if the payments drop the Obligor into a lower tax bracket.

On the other hand, the receiving spouse (Obligee) must report the payments as additional income on his or her Form 1040. By structuring the settlement in this manner, the Obligor could hang on to additional assets and reduce his or her tax liability at the same time. Conversely, the Obligee could obtain the security of payments over time and, assuming the Obligee is in a lower tax-bracket, reduce the overall tax liability of the marital estate.

Under IRS publication 504, the following types of payment are not considered to be spousal maintenance (alimony):

· Child support,
· Noncash property settlements,
· Payments that are your spouse's part of community income,
· Payments to keep up the payer's property, or
· Use of the payer's property.

In order to qualify to be alimony (or spousal maintenance), the settlement must be structured properly. The following seven requirements are mandatory:

1. The payments must be made as part of a written divorce agreement;
2. The payments must be made to your ex-spouse and usually not to third parties;
3. The divorce (or agreement incident to divorce) should not expressly disclaim that the payment is for alimony (spousal maintenance);
4. After the divorce, you and your spouse cannot live together in the same household and should not file the taxes jointly;
5. The payment must be in cash or equivalents (checks, money orders, cashier's checks) and not money from a property settlement;
6. The payment cannot be considered to be child support; and,
7. The obligation to make payments must cease if your ex dies.

If you have questions, you should consult an experienced divorce attorney or CPA.

***** Treasury Circular 230 Disclosure - To comply with requirements imposed by the Internal Revenue Service, to the extent this blog posting could be construed to include "tax advice," the information is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding tax penalties that may be imposed on the person. This blog post is intended for informational purposes only, the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

FAQ: Can I get Alimony in Texas?

No. There is no “Alimony” per se under Texas law. However, the Court can grant “spousal maintenance” in certain limited circumstances, such as when: (1) there has been a conviction (or a grant of “deferred adjudication”) for an act involving family violence within two years of the filing for divorce, or during the pendency of the divorce, (2) the parties have been married for at least ten years and the spouse seeking the maintenance “lacks sufficient property” . . . “to provide for the spouse's minimum reasonable needs” and when any one of the following [a, b, or c] exist: (a) the spouse seeking the maintenance is unable to support him or herself through “appropriate employment because of an incapacitating physical or mental disability,” (b) the spouse seeking the maintenance is the custodian of a child of the marriage (of any age) who requires substantial care and personal supervision because of a physical or mental disability, or (c) the spouse seeking the maintenance “clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs.”