This is a common scenario: spouses decide to end their marriage, and they don’t want to drag it out; but one of them is concerned having to pay alimony will keep them from moving on.
The good news is, in Texas, it’s possible to avoid paying court-ordered spousal support – more so than in any other state. The laws governing spousal maintenance are specific and restrictive.
The bad news is, if your spouse meets the legal requirements for spousal maintenance, you’ll have to present a very compelling argument why you shouldn’t have to pay it.
In this article, we’ll give you tips to help you make that argument or at least reduce the prolonged financial strain court-ordered payments can create.
Topics to Explore:
- Your Spouse’s Need vs. Your Ability to Pay
- Prove Your Spouse Can Support Themselves
- Other Ways to Avoid Paying Alimony
It’s Up to the Judge
The Texas Family Codes set strict guidelines for determining whether a spouse is eligible to receive court-ordered maintenance, for what amount, and for how long. However, the law also gives judges wide discretion to rule on a case-by-case basis.
This means that whatever the law says, judges can — and often do — apply common sense to spousal maintenance rulings. Divorces are as unique as the couples getting them, so each case is fact-specific.
Your Spouse’s Need vs. Your Ability to Pay
Most people don’t like to be forced to part with their money, especially if you’re already stretched thin. Handing over a fifth of your income each month for alimony could leave you in a desperate financial position.
Just because your spouse is more likely to ask for maintenance does not mean they need your money more than you do. Let’s explore how you can make a Texas judge understand this.
Tip 1: Submit a Detailed Financial Affidavit
Feeling those financial worries in your gut is one thing. Getting them on paper is something else altogether. Seeing your finances in black and white can help gain the court’s sympathy before any ruling on spousal maintenance comes down. After all, you have minimum reasonable needs, too.
A family law judge will weigh a number of financial factors to determine whether spousal support is appropriate, including:
- liquid assets of each spouse (e.g. cash in checking and savings)
- debts and liabilities owed and how they get divided
- each spouse’s current income vs. expected living costs and expenses
- marital property division and the new living conditions for each spouse
- each spouse’s education level
- the time needed for a spouse to obtain educational or job training in order to achieve financial independence
- child custody or conservatorship and child support payments
The judge will also consider any potential future earnings by you and your spouse when determining whether to award spousal support, if so, how much. For instance, one of you might have put a career or a college degree on hold to stay home with children during the marriage. A judge will evaluate the asking spouse’s potential of earning higher income when they rejoin the workforce.
Prove Your Spouse Can Support Themselves
Texas courts have heard many tales of marital grievance and financial woe. Not all of those tales have been true. However, if your spouse gains the judge’s sympathy, the court’s commiseration will come out of your monthly income.
So, you must make the case that your soon-to-be ex-spouse does not need alimony. This requires proving at least three things:
- they can pay their bills,
- they have a place to live, and
- they are able to get to and from work.
If you prove those facts, you will have established that your spouse can meet his or her minimum reasonable needs. However, the court will not expect your spouse to subsist on the bare minimum if it knows you can provide more. Therefore, you must show that either:
- you are not able to provide more money, and/or
- your spouse has the means or potential to achieve financial independence.
While courts try to divide property and assets in “a just and right” manner, some details can be overlooked or underestimated at trial. These details can make all the difference when a judge decides whether to award spousal maintenance.
Tip 3: Show Your Spouse Has Income and Assets to Live On
The amount of each spouse’s income and assets acquired over the duration of the marriage could be sufficient, even when divided 50/50, to cover your spouse’s monthly expenses. These can include any of the following:
- rental income from real property
- retirement benefits received
- social security benefits received
- bank account balances
- salary, wages, and/or bonuses from a job
- unemployment insurance benefits
- disability insurance benefits
- dividends and capital gains
- monetary gifts and prize money
- family business
- assets or property owned by the spouse since before the marriage
Sometimes, a trial court will overlook certain assets when considering whether to award spousal maintenance. Let’s look at one such case:
Willis v. Willis (2017)
In the divorce of Howard and Lola Willis, an appellate court overturned a trial judge’s order that the husband pay the ex-wife $972 per month in alimony, though she was already receiving:
- $603 per month in social security (SSI) benefits for herself,
- $806 in SSI benefits for the couple’s two autistic children,
- $1075 per month in child support, and
- $1000 per month, over five years, in a $60,000 judgment as part of the division of the community estate, which included several real property holdings
Lola’s total monthly expenses amounted to only $1,455 per month, as she and the children had lived with her mother since the couple’s separation, and she intended to continue that living arrangement.
Doing the Math
The appellate court disregarded the monthly $806 in children’s SSI, and the $1,075 in child support, as those went to the children, and not toward Lola’s “minimum reasonable needs.” Even so, the remaining $1,603 she received monthly — her own SSI plus the judgment award — more than covered her $1,455 monthly expenses.
The trial court had overlooked either the individual SSI money or the $1,000 per month (x60 months) judgment when it awarded Lola spousal maintenance.
The appeals judges said: “Because the evidence is legally insufficient to support a finding that Lola would lack sufficient property on dissolution of the marriage to provide for her ‘minimum reasonable needs,’ the trial court abused its discretion in making a spousal-maintenance award.” — Willis v. Willis (Tex. App. Oct. 24, 2017)
Tip 4: Demonstrate Your Spouse is Fit to Work
One way to avoid alimony is to ask a judge to evaluate your spouse’s true earning capacity. If he or she has the necessary skills and education to land a decent-paying job, you can request a vocational evaluation. This will also provide unbiased insight into how much your spouse might earn by obtaining employment in their area of expertise or based on their educational background.
A vocational expert (or evaluator) is trained to determine an individual’s potential earnings based on job skills, work history, education level, and the availability of suitable employment in the local area.
While you might hesitate to add another professional’s bill to the cost of your divorce, a vocational expert’s testimony could save you a lot of money in the long run.
Don’t Forget the Diligence
Unless your spouse has been abused, has a disability, or is caring for at least one disabled child, they must demonstrate diligence at trying to earn sufficient income to support themselves.
Your ex cannot simply tell the court they failed to seek employment because they expected a spousal maintenance award. Texas judges will not grant alimony in such cases. — Tex. Fam. Code § 8.053(a)
Tip 5: Disprove Claims of Disability
This is a big one. Texas takes a conservative stance toward court-ordered spousal maintenance, and many ailments and physical inconveniences are not necessarily viewed as disabilities in divorce courts.
Therefore, your spouse who has been accustomed to getting out of work due to “my high blood pressure” or “my asthma” or “my bi-polar disorder” could be in for a rude awakening when they ask for alimony.
Unlike most spousal maintenance awards which expire after three to five years, those based on a spouse’s physical or mental disability may continue indefinitely. Therefore, if you anticipate your spouse will request spousal maintenance on grounds of a disability, you should start gathering evidence and testimony to make a rebuttal.
Tellez v. Tellez (2010)
The wife, Zoila Tellez, wanted ex-husband Benigno to pay her $1,508 a month in spousal maintenance for, essentially, the rest of her life. Though she worked as a teacher’s assistant at a local school, Zoila claimed she was disabled due to diabetes, asthma, neuropathy, hypertension, allergies, arthritis, and depression.
The trial court awarded Zoila $800 per month — even less than the amount needed to eliminate her monthly budgetary shortfall — and only for 36 months. Zoila’s appeal garnered no more sympathy than she’d received from the trial court:
“Despite the testimony about Wife’s illnesses, the record does not conclusively demonstrate a disability or incapacity such that Wife is unable to support herself through appropriate employment. In addition, even if a spouse is permanently disabled, extended maintenance is discretionary.” — Tellez v. Tellez (Texas App. July 12, 2011)
Tip 6: Demonstrate Your Inability to Pay
Divorce can strain finances. Being the primary earner during the marriage does not mean you’re in a position to continue supporting your ex.
If you’re trying to avoid paying alimony, or hoping to at least reduce the payment amount, you must show that your own economic circumstances have taken a significant downturn.
A judge will not bat an eye at small changes. Therefore, it’s important to show that your financial condition is, and will be, substantially worse than it was during the marriage. This could be because …
- you have experienced involuntary job loss or a sharp reduction in wages or salary.
- you’ve suffered a disability or illness which prevents you from working.
- the division of assets has left you at a decided, provable disadvantage.
Whatever your argument, you will need evidence to support it. This could be:
- a written termination notice
- a medical or psychological evaluation
- tax returns
- income and expense statements, and more, depending on your claim.
Other Ways to Avoid Paying Alimony
Consider the Family Codes
If your spouse fails to meet basic statutory requirements for court-ordered spousal maintenance, then everything else is moot. In case you’re not familiar with the Family Codes, and what courts deem as automatic disqualifiers for spousal maintenance, know these facts:
- The marriage must have lasted 10 years, from the day of the wedding to the date the decree of divorce was signed. (Tex. Family Code § 8.051(2)(B)). For this reason, some attorneys advise clients in troubled marriages to dissolve the union sooner rather than later. The only exceptions to this 10-year requirement are if your spouse or any child is disabled or you were convicted of family violence against any of them and the act of family violence was within two years of filing for divorce.
- The spouse seeking maintenance lacks sufficient property or income to provide for their reasonable needs.
Avoid Paying Alimony Before Getting Divorced
One way to get out of court-ordered spousal support is to stay out of court. If you and your spouse have agreed to part ways, but still maintain an amicable, cooperative relationship, you can opt for a collaborative divorce.
A collaborative divorce is a private and confidential process designed to meet the needs of both spouses while avoiding litigation and arrive at a mutually agreeable settlement. Each spouse still hires an attorney, but the lawyers work together to manage conflict rather than create it. Perhaps you and your spouse, with your lawyers, could negotiate a better way around court-ordered spousal support, such as a lump-sum buyout or a more agreeable contractual alimony arrangement.
Avoid Alimony Before Getting Married
It is possible in Texas to negotiate a premarital agreement with a specific provision to set, or even waive, alimony. All that’s required is that the rest of the agreement be legal, which likely requires the assistance of a skilled attorney. A premarital (or prenuptial) agreement is valid and enforceable by the courts.
Talk to a Family Law Attorney About Your Alimony Concerns
So much is at stake in a divorce, especially when it comes to the matter of alimony or court-ordered spousal maintenance. You could end up sending your ex up to 20 percent of your monthly earnings for at least the next few years instead of using it as you see fit. That is the difference a skilled and experienced Robinson & Henry lawyer might make for you. Call 214-884-3775 for your case assessment.