Collecting Overdue Alimony From Your Ex-Spouse in Texas

Some individuals need financial help following a divorce. Courts may order one party to pay the other spousal maintenance, or a divorcing couple could agree to contractual alimony payments. Unreliable payments can lead to undue financial hardship and future uncertainty. If your ex-spouse has missed their financial obligations, this article will walk you through all the legal options available to get the money you’re owed.

In This Article:

• Types of Texas Alimony Briefly Reviewed
• Strategies to Collect Past Due Alimony
• The Order or Writ of Withholding Route
• Employer’s Duty to Withhold and Remit Payments
• Modifying and Terminating Withholding

Types of Texas Alimony Briefly Reviewed

During the divorce process, the court considered factors such as how long you were married, your financial needs, and whether your ex-spouse could afford to pay spousal maintenance, sometimes informally called alimony. Once the court determined that monetary support was appropriate, it issued an order that specified the amount, duration, and frequency of the payments you were to receive.

Spousal maintenance is a discretionary order the court imposes to obligate one spouse to pay the other spouse a share of future earnings as a form of financial support after a divorce.

Contractual alimony, by contrast, is reached in an out-of-court settlement. As a result, family courts only enforce them to the extent they align with Texas Family Code requirements. A civil suit is the most common tool used to enforce contractual alimony since it is a binding contract. Tex. Fam. Code § 7.006

As you can see, it’s worth getting clear on what type of alimony – contractual or spousal maintenance – you have in order to pursue the most effective enforcement option.

Why Has Your Ex-Spouse Stopped Paying Alimony?

A good attorney wants to know what you know about your ex-spouse’s situation.

• Do you believe your ex is willfully violating the terms of your divorce agreement or is a miscommunication or misunderstanding at the root of it?
• Have your ex-spouse’s financial circumstances changed?
• Has something about your living situation, health, or a dependent’s health changed?

These are the types of questions you can expect your family law attorney to ask as they dig deeper into your circumstances.

Grounds for Terminating Maintenance

The court recognizes three reasons to terminate spousal maintenance payments:

1. The party receiving the payments marries;
2. The party receiving the maintenance is co-habitating in a permanent abode with a romantic partner on a continuing basis; or
3. Either party dies.

Modifying Spousal Maintenance Payments

Material and substantial changes of circumstance that occur after the date of the prior Order granting spousal maintenance are proper grounds for a modification of a spousal maintenance order.  A motion to modify spousal maintenance is filed in the court that rendered the divorce, and the other party must be served with citation and given notice of a hearing on the motion to modify, as in other lawsuits.  Of course, either side may bring a motion to modify spousal maintenance, depending upon whose circumstances have changed.

If none of these scenarios applies to your situation, read on.

Strategies to Collect Past Due Alimony

In Texas, failure to pay court-ordered spousal maintenance  could subject your ex-spouse to contempt charges, attorney’s fees and fines.

Have Your Ex Held in Contempt of Court

When people think of being held in contempt of court, they typically picture exhibitions of disorderly conduct during court proceedings. But disobeying the provisions of one’s divorce order can also land the violator with contempt of court charges

Contempt charges can be used to enforce a spousal maintenance order as long as the provisions in the divorce suit are final, specific, and clear as to when and to whom payments should be made.

However, if the language in a divorce suit is not specific or clear enough to be enforceable, it could be subject to what’s called a clarification order. Before the court would hold your ex in contempt, it would elaborate on the details of the order in question. Note that a clarification order cannot be retroactively added and a reasonable amount of time must be provided for compliance before the order can be enforced.

Penalties for Contempt of Court

Someone found in criminal contempt of court may be ordered to pay a $500 fine, confined to county jail for a maximum of six months, or both. If found in civil contempt of court, the individual could be incarcerated until that person complies with the court’s order.

Obtain a Judgment for Balances Due

Contempt of court is not the only route toward collecting past-due alimony. Another option is to enforce the maintenance order by filing a motion seeking a monetary judgment against the defaulting party.

Your ex-spouse will be notified about the suit to enforce the maintenance order and given an opportunity to respond to it before the hearing. The court may render judgment for the unpaid amount and if it finds your ex has failed or refused to comply with the terms of the order.

Collecting the Judgment

You can obtain a judgment for the amounts owed under the improper provision and utilize the remedies available to judgment creditors to collect on that judgment. This includes:

• Wage garnishment
• Liens on property
• Levying bank accounts

Request a Qualified Domestic Relations Order

A qualified domestic relations order (QDRO) allows for the payment of pension, retirement plan, or other employee benefits to an alternate payee to satisfy amounts due under a spousal maintenance order.

A QDRO can be used to direct the payment of that maintenance from the other spouse’s retirement benefits, regardless of whether the benefit is private, state, or federal. The court retains jurisdiction to render a QDRO until all support due has been paid.

The Order and Writ of Withholding Route

Both spousal maintenance and contractual alimony can also be enforced by an order of withholding or a writ of withholding.

This requires your ex-spouse’s employer to withhold a certain amount of money from their earnings and remit that amount for your benefit.

Contractual alimony is enforceable by an order or writ of withholding if either:

• The contract specifically permits income withholding; or
• The payments are not timely made under the terms of the contract

An order of withholding is obtained in a court proceeding, while a writ of withholding can be obtained without going to court.

Order of Withholding

If the court has ordered withholding for spousal maintenance, the obligor or the beneficiary may request an income withholding order to initiate income withholding. The withholding order is issued by the court clerk, signed by the Judge,  and delivered to the obligor’s employer, directing that earnings be withheld for payment of spousal maintenance. With an order of withholding, your ex-spouse does not have grounds to resist the issuance of an order because no arrearage exists or has existed.

Writ of Withholding

A writ of withholding is a legal instrument used to enforce court-ordered child support or spousal maintenance payments. It allows income to be withheld from the disposable earnings of a spouse or parent who is obligated to make these payments. The Texas Attorney General’s Office administratively issues the writ of withholding.  The agency can also adjust the amount to be withheld for balances due, reissue an existing withholding order, or direct child support payments to the state disbursement unit of another state.

Unemployment insurance benefit payments are exempt from garnishment for spousal maintenance.

An order or writ of withholding for spousal maintenance is binding on Texas employers regardless of where your ex-spouse works or lives.

Withholding has priority over most other earnings deductions except child support. There are limits on the maximum amount that can be withheld. An order or writ of withholding for spousal maintenance has priority over any garnishment, attachment, execution, or other order affecting disposable earnings, except for an order or writ of withholding for child support. Tex. Fam. Code § 364.30

The maximum amount that the employer may withhold from your ex-spouse’s disposable earnings for both spousal maintenance and child support is the lesser of either:

• The amount specified in the order or writ; or
• An amount that, when added to the amount being withheld by the employer for child support, is equal to 50% of the obligor’s disposable earnings.

Both parties involved in a court-ordered spousal maintenance agreement can initiate wage withholding to enforce the payments. This starts with filing a notice of application in the original court that issued the order. If wage withholding wasn’t already part of the order, additional steps like notifying the other party may be required.

Strategies for Enforcing Contractual Alimony Payments

Unlike spousal maintenance, contractual alimony is not enforceable by contempt because of a public policy that limits a court’s authority to award alimony. Unpaid contractual alimony is considered a debt.

Instead, civil enforcement options may be available.

File a Lawsuit for Breach of Contract 

If your ex-spouse has stopped making contractual alimony payments, you can file a lawsuit for breach of contract, as these alimony agreements are enforceable under contract law.

In addition to recovering the missed alimony payments, you may also be able to recover your attorney fees.

Time Limits and Collecting Judgments

As with all civil lawsuits, one seeking past-due contractual alimony faces statutes of limitations. The time limit to file a suit to collect a debt is four years. T.C.P.R.C. § 16.004(a)(3)

Another consideration you’ll have to make is whether you will be able to collect the judgment if you prevail in court.

If the court awards you a judgment, you’ll likely have to attach a lien to your ex-spouse’s house. If he or she sells the home, you’ll receive payment from the proceeds. If your ex-spouse does not own a home, you’ll need to obtain a writ of garnishment from the court to collect the debt from their bank accounts or wages.

Income Withholding in Limited Circumstances

You may be able to have funds withheld from your ex’s paycheck. However, this is only possible if your alimony contract specifically allows income withholding as a way to cure untimely payment under its terms.

The amount and duration that can be enforced through income withholding are limited to the amount and duration the court could have ordered under Chapter 8.

Employer’s Duty to Withhold and Remit Payments

Employers have duties to comply with withholding orders, including remitting payments on time. There are penalties for noncompliance.

An employer must begin to withhold income following an order or writ of withholding not later than the first pay period after the employer receives the order or writ.

Modifying and Terminating Withholding

Withholding orders can be modified or terminated by agreement or court order if conditions are met.

We Can Help You Collect Past-Due Alimony 

We’re here to help you collect past-due alimony. Call our Southlake office at 214-844-3775 to schedule a consultation today.