The origin and basis of family law statutes and precedent in Texas were heavily influenced by the predecessor Spanish/Mexican Law prior to the formation of the Texas Republic. Spanish Law required in large measure that a husband and wife share ownership and if a divorce was granted then a 50/50 split of all property would ensue. Though there are exceptions to this, a general tenant of Texas property law states that both spouses will receive half of all the property they accrue during the marriage called “community property”, not inherited or received by gift. The influence of Spanish Law is a primary reason that for many years Texas has not favored any type of permanent alimony (also called spousal maintenance) after divorce.
In 1995 the Texas Legislature passed the first Spousal Maintenance Law that allowed a limited type of alimony. The law has been amended many times but in its current form it allows, upon proper proof, a spouse, under specific conditions to receive post-divorce money from their spouse for future support. The eligibility for Spousal Maintenance in Texas is limited and narrowly constructed.
Texas Family Code 8.051 states the requirements for a spouse to be eligible for Spousal Maintenance (alimony) as follows:
The spouse in which requests the spousal maintenance has been a victim of family violence by their husband or wife and the offense occurred:
- within two years before the date on which a suit for dissolution of the marriage is filed or;
- while the suit is pending
The spouse seeking spousal maintenance:
- is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
- has been married to the other spouse for 10 years or longer or lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
- 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 that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.
The qualifications are narrow. Spousal Maintenance focuses on a spouse who has been a victim of family violence, has a mental or physical disability, or has been married for at least 10 years. The amount of money the Court will allow to be paid to a spouse monthly cannot exceed the lessor of 5,000 or 20% of a spouse’s average monthly gross income per Texas Family Code 8.005.
If you are in the process of divorce, and have been a victim of family violence or have been married for at least 10 years, then speak with an experienced attorney about the possibility of obtaining Spousal Maintenance. Spousal Maintenance is not a permanent fix but a temporary solution until you can get back on your feet. Texas Courts are hesitant in granting spousal maintenance because the spouse of a marriage generally receives half of all property accrued during the marriage. If the required extraordinary circumstances are present it is possible to receive some type of alimony for a limited amount of time.
Contact an experienced attorney that deals with matters to inform you if spousal maintenance is possibility. If you have been a victim of family violence or have been a stay at home mom for at least 10 years then you may have the ability to receive a limited form of alimony to help aid you with the daunting task of finding a new job and starting a new life.
Spousal support law continues to evolve in Texas; but like the hot, dry summer days which seem to creep along, the process moves slowly.
Governor Rick Perry signed HB 901 on June 17, 2011. The law is effective for Texas divorce cases filed on or after September 1, 2011. In 1995, Texas was the 50th state to pass a law providing for spousal support and has been one of the most restrictive in the nation.
The new law provides potentially increased relief to spouses who have been out of the work force, are disabled, are victims of family violence or are the primary custodians of a disabled child.
Major changes to the spousal support law are:
1. The maximum amount of spousal support that courts may award increases from $2,500 to $5,000.00 per month, although still limited to 20 percent of the payer’s average gross monthly income.
2. The duration of spousal support is extended from a maximum of 3 years to a maximum of 5, 7 or 10 years, generally depending on the length of the marriage.
3. The law clarifies that if a person has primary care for a disabled child, the custodial parent may be prevented because of the child’s disability from earning sufficient income to meet the custodial parent’s minimum reasonable needs.
4. The law also clarifies that a person may not be held in contempt for failing to pay spousal support which is in an agreed order and extends beyond the period of time provided under the law.
In order to receive “maintenance,” (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property to provide for the spouse’s “minimum reasonable needs”, AND one of the following:
(1) The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;
(2) The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;
(3) The recipient is the custodian of a child of the marriage of any age who required substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs; OR
(4) The person ordered to pay support must have been convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit is filed.
Under the previous law, under most circumstances, the court could only order maintenance for a maximum of three years, regardless of the length of the marriage. Under the new law, the court can order maintenance to continue for:
(1) 5 years if the parties were married less than 10 years and the maintenance is awarded due to family violence;
(2) 5 years if the parties were married more than 10 years, but less than 20 years.
(3) 7 years if the parties were married more than 20 years, but less than 30 years;
(4) 10 years if the parties were married for more than 30 years.
In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance continue as long as the disability continues.
However, in all circumstances, the law provides that the Court shall order maintenance for the shortest reasonable period that allows the recipient to earn sufficient income to meet his or her reasonable needs.
If you are contemplating dissolving your marriage and have questions concerning your financial future, seek competent legal counsel to help you determine whether you could be eligible for spousal support under the expanded provisions of the new law.