Avoid a Texas Alimony Disaster

Often in a marriage, one spouse will earn a higher income than the other. The other spouse may work part-time, handle household duties, or care for children. If the marriage breaks down, a lower-earning spouse may not immediately have the financial resources to support himself or herself. That’s where alimony, called spousal maintenance, comes in. Read this article to learn about Texas alimony agreements and when the courts can enforce them.

Topics to Explore

• How Much Alimony Can I Get & for How Long?
• How Do Courts Decide if I Get Alimony?
• What to Do if My Ex Stops Making Payments
• Defenses for Stopping Alimony Payments
• Alimony Modifications
• Enforcing Contractual Alimony

What is Alimony?

In Texas, alimony is often referred to as spousal maintenance or spousal support. It is a monetary payment to a former spouse that continues after divorce.

How Much Alimony Can I Get in Texas?

If the court determines one spouse is unable to meet their minimum reasonable needs, then Texas courts may award the lesser of:

1. $5,000; or
2. 20 percent of the spouse’s average monthly gross income. Texas Family Code § 8.055

How Long Can I Receive Alimony?

Texas alimony awards are payable for up to:

• 5 years if the marriage lasted fewer than 10 years and the paying spouse was abusive, or if the marriage lasted 10 to 20 years
• 7 years if you and your spouse were married for at least 20 years, but not more than 30 years
• 10 years if your marriage lasted 30 years or longer Tex. Fam. Code § 8.054

Texas Alimony May Be Indefinite

Courts may award Texas alimony indefinitely if the petitioning spouse or their dependent child is physically or mentally disabled — provided the underlying condition persists.

How is Alimony Determined in Texas?

Courts consider multiple relevant factors when awarding Texas alimony, including:

1. each spouse’s ability to independently provide for his or her own minimum reasonable needs, considering that spouse’s financial resources at the time of divorce
2. the education and employment skills of each spouse, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training
3. the duration of the marriage
4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance
5. the effect on each spouse’s ability to provide for his or her minimum reasonable needs while also paying child support
6. excessive or abnormal spending by either spouse, or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other commonly held property
7. whether one spouse contributed to the education, training, or increased earning power of the other spouse
8. the property each spouse brought to the marriage
9. a spouse’s contributions as a homemaker
10. marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
11. any history or pattern of family violence.

Tex. Fam. Code § 8.052

Enforcing Alimony Orders & Agreements

Court-ordered Texas spousal maintenance agreements may be enforced through the court’s contempt powers. You could be fined or sent to jail if you are held in contempt for not paying alimony.

Defenses for Non-Payment

If you are the paying spouse and are being held in contempt for failure to comply, here are some defenses available to you:

1. You couldn’t afford the amount due.
2. You lacked property that could be sold, mortgaged, or otherwise pledged to raise the necessary funds.
3. You attempted unsuccessfully to borrow the necessary funds; and
4. You could not find another source from which to borrow or otherwise legally obtain the money for your payment. Tex. Fam. Code § 8.059

Modifying Your Spousal Maintenance Order

Courts can only modify Texas spousal maintenance agreements “on a proper showing of a material and substantial change in circumstances that occurred after the date of the order or decree.” Tex. Fam. Code § 8.057 In contrast, a court cannot modify contractual alimony.

In order to modify spousal maintenance, a Texas family law court must compare the financial circumstances of both spouses at the time of the existing order with their circumstances at the time a modification is sought. Without both sets of data, the court has nothing to compare. Therefore, it cannot determine whether a material and substantial change have occurred. Further, if no changes have occurred, the trial court abuses its discretion if it modifies the alimony. Tex. Fam. Code § 8.057

A Texas Modification Request Gone Wrong

One Bexar County man learned this the hard way when he petitioned the court to modify his Texas spousal maintenance payments to his former wife. He showed the court the present financial status of both parties. However, he did not demonstrate how that status had changed since the divorce or modification. Therefore, a Texarkana appeals court ruled:

Without financial data to compare the present circumstances of the parties with their financial circumstances at the time of the entry of the maintenance order, there can be no showing of a substantial change. In re Lendman, 170 S.W.3d 894, 900 (Tex. App. 2005)

Can a Court Order the Payment of Contractual Alimony Post-Divorce?

In a word, no. Contractual alimony is a form of spousal support agreed upon by both parties:

“A promise to pay contractual alimony creates nothing more than a debt, not a legal duty imposed by Texas law.” Heller v. Heller, 359 S.W.3d 902, 903 (Tex. App. 2012)

If you and your former spouse choose the contractual alimony route, the terms are up to you. For example, you may agree to higher maintenance payments in exchange for keeping the marital home. Essentially, you can tailor your Texas alimony agreement to suit your needs without being bound by the constraints of a family law court.

When Texas Courts Can Enforce Contractual Alimony

Only under certain circumstances. This is where Texas contractual alimony cases start veering into contract law territory, rather than family law.

In contractual alimony cases, Texas courts have held that:

an assumed obligation for spousal support is properly characterized as a contractual duty having whatever legal force the law of contracts will give to it. Moreover, a court’s approval of a support agreement and incorporation of it into the final divorce decree does not transform contractual payments into prohibited court-ordered alimony. Woolam v. Tussing, 54 S.W.3d 442, 443 (Tex. App. 2001)

In one recent Texas contractual alimony case, the court found that a portion of the wife’s claim was barred by the four-year contract statute of limitations. Let’s take a look.

Background: Wilson v. Wilson

During their 2012 divorce, Freida and Tim Wilson entered into a written contractual alimony agreement included in their divorce decree. Tim agreed to pay Freida $4,000 per month in contractual alimony from June 1, 2013, through May 1, 2015. The money would be due at the first of each month with a five-day grace period before the payment would be considered late.

The decree further stated that Freida could accelerate the payments if Tim defaulted and did not cure the default within 30 days of receiving written notice of intent to accelerate. In layman’s terms, that means Freida could request Tim to give her the full amount of the alimony payments all at once if he ever defaulted and did not get caught up within a month’s time.

Husband Defaults, Wife Moves to Enforce

In March 2019, Freida filed a motion to enforce the Texas alimony payments with a Waller County court. She alleged that Tim violated the divorce decree when he stopped making the required payments in December 2013.

Freida asked the court to order Tim to pay the past-due amount plus interest, court costs, and attorney’s fees. She also asked the court to hold Tim in contempt.

Husband Moves to Dismiss

Tim’s attorney filed a motion to dismiss Freida’s claim, telling the judge:

But, Your Honor, this is filed as a motion to enforce; and it’s to enforce contractual—this is not statutory alimony; this is a contractual alimony provision. That’s not enforceable by traditional enforcement mechanisms. It’s a—it would simply be a suit on a contract. That’s not what we have before the Court today. We filed a motion to dismiss along with the answer based on the fact that this is not an appropriate remedy. Wilson v. Wilson, No. 14-19-00767-CV, 2021 Tex. App. LEXIS 5426, at *3 (Tex. App. July 8, 2021)

Tim’s attorney further argued that Freida’s claim was time-barred by the four-year statute of limitations stipulated in Texas contract law.

The court agreed to treat Freida’s claim as a breach of contract case, which meant applying the statute of limitations.

Court Awards Money to Wife

Freida presented a letter she sent Tim in January 2014 notifying him of her intent to invoke the acceleration provision of the decree if he failed to pay the defaulted alimony within 30 days. However, by Freida’s own testimony, she never took any additional steps to accelerate the debt after sending the notice.

Ultimately, the court awarded Freida the alimony payments due for March, April, and May 2015. The court also ruled that Freida did not accelerate the debt in January 2014. Additionally, it did not hold Tim in contempt.

The court’s final judgment awarded Freida $12,000 for the contractual alimony, $2,510.13 in prejudgment interest, $3,500 in attorney’s fees, and $105 in court costs, for a total amount of $18,115.13.

Husband Appeals Court’s Decision

On appeal, Tim contended that the trial court erred by not applying the statute of limitations to:

1. the full debt because Freida had accelerated it in January 2014; or alternatively
2. the March 2015 payment.

There was no dispute that the four-year statute of limitations applied, nor that it would apply separately for each missed payment. However, Tim maintained that Freida accelerated the entire amount with her January 2014 letter. Therefore, he argued the claims for all payments were time barred by the statute of limitations.

Court Rules in Husband’s Favor, in Part

The appeals court agreed with the trial court that Freida had never accelerated the full debt. Accelerating the debt would have required a second notice of acceleration in addition to the first notice of intent to accelerate.

However, the court did find that Freida’s claim for the March 2015 payment was time-barred. Under the terms of the decree providing for contractual alimony, the payments were deemed timely if deposited on the sixth of each month. Since Freida filed her motion to enforce on March 26, 2019, the statute of limitations had expired.

The appeals court’s judgment reduced Freida’s damages award by $4,000.

So, When Can Texas Courts Enforce Contractual Alimony?

Texas family law courts cannot enforce contractual alimony via a wage withholding order unless:

1. the contract specifically permits income withholding; or
2. the alimony or maintenance payments are not timely made under the terms of the contract.

Tex. Fam. Code Ann. § 8.101

Speak with a Texas Family Law Attorney Today

Alimony in Texas is complex. Having a Texas alimony attorney on your side will help you avoid major headaches down the road. Call 214-884-3775 to begin your case assessment with one of R&H’s Texas family law attorneys.