In Texas, alimony is formally known as “spousal maintenance” or “maintenance.” The courts begin all spousal maintenance cases with the presumption that maintenance is not necessary.
To have the court make an award, the recipient spouse will need to demonstrate need after making a good faith effort to earn an income or acquire the education or training necessary to become financially independent. If a spouse can meet this requirement, the court will move forward with a maintenance determination.
If you’re involved in a Texas divorce where spousal maintenance is an issue, here’s what you need to know:
- Types of Spousal Maintenance in Texas
- Factors That Determine Spousal Maintenance Amounts
- Duration of Payments
- Modifying a Support Order
- Options When Non-Payment is an Issue
- Does Child Support Affect Spousal Maintenance?
- Does Asset Division Affect Maintenance?
- Spousal Maintenance and Taxes
Types of Spousal Maintenance in Texas
By legal definition, spousal support and spousal maintenance differ under Texas law.
Spousal support is voluntary and a condition the divorced spouses agreed to in their settlement. Spousal support can be enforced like a contract. Spousal maintenance is determined by a family court judge and is enforceable as a court order.
There are strict eligibility requirements for spousal maintenance and how much can be awarded, although maintenance is decided on a case-by-case basis.
There are four types of spousal maintenance in Texas:
- The parties can agree that spousal maintenance is payable for a specific period.
- The marriage has lasted for at least 10 years, and the spouse seeking maintenance lacks sufficient property or income to provide for her reasonable needs AND is either disabled, or a primary caretaker of a disabled child, or lacks earning ability to provide for their minimum reasonable needs.
- The spouse from whom maintenance is requested has been convicted or received deferred adjudication for a family violence offense against the other spouse or the other spouse’s child within two years of the filing of the divorce or while the divorce is pending. The duration of the marriage is irrelevant.
- If a spouse is a sponsored immigrant, they could enforce the Affidavit of Support executed by the other spouse. This is a request that the Court order the sponsor to provide the immigrant spouse 125 percent of the Federal Poverty Guidelines until the immigrant spouse becomes a U.S. citizen or until they have earned 40 credits of work history.
Temporary spousal maintenance is awarded with much greater frequency than spousal maintenance. In this case, a spouse can ask the court to put a temporary order in place for the duration of the divorce process. There are fewer rules to abide by and circumstances that must be in place to be instituted. It would be ongoing until a specific date specified in the temporary orders or until the Final Decree of Divorce goes into effect.
Read More: Uncontested Divorce in Texas
Factors That Determine Spousal Maintenance Amounts
If the court determines that a spouse is eligible for maintenance, it’s up to the court to decide the duration, amount, and manner of payments (periodic or lump sum).
The Texas Family Code also sets forth the factors that a court will consider when awarding maintenance, including:
- each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources based on the dissolution of the marriage
- the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn adequate income, and the availability and feasibility of that education or training
- the duration of the marriage
- the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance
- the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable
- acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common
- the contribution by one spouse to the education, training, or increased earning power of the other spouse
- the property brought to the marriage by either spouse
- the contribution of a spouse as a homemaker
- marital misconduct, including adultery and cruel treatment, by either spouse during the marriage
- any history or pattern of family violence, as defined by Section 71.004
Texas is a community property state, meaning all property acquired during a marriage is owned equally by both spouses, with a few exceptions. Texas is also a no-fault state, meaning that no specific reason needs to be stated for why a marriage is ending. However, spouses do have the option of choosing one of seven reasons as grounds for divorce if they want to state a fault instead.
Both laws guide important decisions regarding spousal maintenance, the division of assets, child custody, child support, and other related issues.
If a judge rules that a spouse is eligible for spousal maintenance, they must decide how much to award. Typically, the amount of spousal maintenance will not exceed the the difference between the supported spouse’s monthly income and expenses. The judge will also consider:
- The earning capacity and employment history of each spouse
- The needs and standard of living of each spouse
- Age and health of both spouses
- Existing debts and assets
- If one spouse inappropriately spent community funds
- Child custody arrangements and whether the primary care spouse can hold a job while taking care of the children
- Did one spouse help the other with education, career training, or other ways to assist them in advancing their career
- Marriage misconduct or evidence of domestic violence
There are no formulas used to determine how much spousal maintenance is awarded, other than it is capped by statute and cannot exceed $5,000 per month or 20% of the spouse’s average monthly gross income. Statutes also cap how long spousal maintenance can take place and vary based on several factors.
Read More: Everything You Need to Know About Alimony
Duration of Payments
Texas Family Code Section 8.054(2) limits the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse’s minimum reasonable needs, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs is substantially or totally diminished because of:
- physical or mental disability of the spouse seeking maintenance
- duties as the custodian of an infant or young child of the marriage
- another compelling impediment to earning sufficient income to provide for the spouse’s minimum reasonable
If a spouse is awarded maintenance, there is usually a cap on how long the award is paid. In most cases, the guidelines are:
- Marriages lasting less than 10 years and when the supporting spouse was convicted of family violence are capped at five years
- Marriages lasting between 10-20 years are capped at no more than 5 years of maintenance.
- Marriages lasting between 20-30 years are capped at no more than 7 years of maintenance.
- Marriages lasting 30 years or more are capped at no more than 10 years of maintenance.
- Disabled spouses are exempt and can receive maintenance if they satisfy eligibility requirements.
Modifying a Support Order
The court can modify a spousal maintenance order if there has been a “material and substantial change of circumstances” since the first order.
Even if a review has been requested, until the court formally changes the award, the paying spouse must continue to follow the requirements of the current court order.
Orders can be modified if a paying spouse has considerable financial setbacks such as a job loss or experiences health issues impacting the ability to earn a sufficient income.
Maintenance orders will end before the termination dates if:
- either party dies
- the supported spouse remarries
- the supported spouse cohabitates with a third-party while in a dating or romantic relationship
- both spouses agree to end the support order
- upon a review or future order of the court
Enforcement: Options When Non-Payment is an Issue
Failure to comply with a spousal maintenance court order in Texas is a serious offense and may result in severe penalties.
Spouses who aren’t receiving timely payments can file a motion to enforce and/or a motion for contempt. This may result in bank liens, mandatory withholding from an employer, and in some cases, jail time.
Does Child Support Affect Spousal Maintenance?
Child support is factored into spousal support payments in Texas. The courts consider income, the number of children requiring support, and other similar factors as part of the overall maintenance determination.
The state uses a formula to determine the amount that should be paid, ranging from 20% of net resources for one child up to 40% when five or more children are involved.
Judges do have some discretion on how much support to grant based on several factors such as the child’s age and needs, educational expenses, health insurance costs, medical expenses, child care costs, and other factors, aside from spousal maintenance amounts.
Does Asset Division Affect Spousal Maintenance?
In some cases, spouses may negotiate to keep certain assets acquired in the marriage for either less or more spousal maintenance.
Texas is a community property state, so all property acquired during a marriage is equally owned by each partner. The exceptions to this are if the property is acquired as an inheritance, a gift to only one of the spouses, or as a personal injury settlement sustained by only one spouse.
Property acquired either before or after the marriage’s separation date is considered the sole property of the person who acquired it. This includes all types of pensions, but only amounts accrued during the marriage.
Texas law requires that community property be divided in a manner considered “just and right.” This means the property must be divided equitably based on circumstances that a court may consider, including each spouse’s earning power, who has custody of any children, each spouse’s health, education, and other related issues.
Spousal Maintenance and Taxes
Beginning January 1, 2019, as part of the Tax Cuts and Jobs Act, spousal support or separate maintenance payments are not deductible from the income of the payer spouse or includable in the income of the receiving spouse if made under a divorce or separation agreement executed after December 31, 2018.
You can’t deduct alimony or separate maintenance payments made under a divorce or separation agreement executed before 2019 but later modified if the modification expressly states the repeal of the deduction for alimony payments applies to the modification. Alimony and separate maintenance payments under such an agreement are not included in your gross income.
According to the IRS, a payment is alimony or separate maintenance if all the following requirements are met:
- The spouses don’t file a joint return with each other
- The payment is in cash (including checks or money orders)
- The payment is to or for a spouse or a former spouse made under a divorce or separation instrument
- The spouses aren’t members of the same household when the payment is made (This requirement applies only if the spouses are legally separated under a decree of divorce or separate maintenance.)
- There’s no liability to make the payment (in cash or property) after the death of the recipient spouse
- The payment isn’t treated as child support or a property settlement.
If you paid amounts that are considered taxable alimony or separate maintenance, you may deduct from income the amount of alimony or separate maintenance you paid whether or not you itemize your deductions.
Not all payments under a divorce or separation instrument are alimony or separate maintenance. Alimony or separate maintenance doesn’t include:
- Child support
- Noncash property settlements, whether in a lump sum or installments
- Payments that are your spouse’s part of community property income
- Payments to keep up the payer’s property
- Use of the payer’s property
- Voluntary payments (those not required by a divorce or separation instrument).
Child support is never deductible and isn’t considered income. Additionally, if a divorce or separation instrument provides for alimony and child support, and the payer spouse pays less than the total required, the payments apply to child support first. Only the remaining amount is considered alimony.