It has been called “the ransom that the happy pay to the devil.” Then again, when it comes to alimony, you rarely find anyone who is happy about having to pay it.
If you’re in the midst of a Texas divorce, or beginning to consider one, you may have basic questions about how spousal support/spousal maintenance works in the Lonestar State.
Below, you’ll find the answers to some of those questions.
Alimony is court-ordered payments one former spouse makes to another after their marriage has ended.
In Texas, courts and lawyers refer to alimony as “spousal maintenance.” The Texas Family Code defines spousal maintenance as:
“. . . an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.” — Tex. Fam. Code § 8.001
Either spouse can be awarded alimony. It is typically paid monthly for a period of time determined by the court.
The amount of spousal maintenance will always be the lesser of:
- $5,000 per month, or
- 20 percent of the paying spouse’s average monthly gross income.
— Tex. Fam. Code § 8.055(a)
The reason for alimony is to provide financial support to the spouse who makes a lower income or, in some cases, no income at all. It’s meant to serve as a financial bridge between divorce and self-sufficiency.
Ideally, the spouse receiving maintenance payments should be able to maintain the same lifestyle they were accustomed to before the divorce. The language in the statutes says that maintenance shall “provide for the spouse’s minimum reasonable needs.” — Tex. Fam. Code Ann. § 8.051.
Note: While courts frequently consider a petitioner’s monthly expenses, income, and any shortfall to determine whether a spousal maintenance award is proper, there is no requirement that a spousal maintenance award entirely eliminate the financial shortfall. — Tellez v. Tellez, 345 S.W.3d 689, 2011 Tex. App. Dallas, 2010
The spouse asking for maintenance must first show that they are still unable to meet their minimum monthly expenses, even after the equitable division of assets and property. Then, according to Tex. Fam. Code Ann. § 8.051, they must still prove at least one of the following:
- that the marriage lasted at least 10 years,
- the asking spouse has made diligent efforts to earn income or develop employable skills,
- the other spouse committed violence against the family,
- the other spouse committed adultery or inflicted cruel treatment upon the asking spouse,
- the asking spouse has an incapacitating disability that arose during the marriage, or
- a child of the marriage (at any age) has a physical or mental impairment that prevents the spouse who cares for the child from earning enough income.
Just because the law provides for court-ordered alimony does not mean that:
- it’s easy to get,
- it will be a large amount of money, or
- it will last indefinitely.
It can be difficult to meet the state’s eligibility requirements, that’s why it’s important to have an attorney to ensure all of your expenses and income are considered so the court has an accurate picture of your circumstances.
It’s important to note that the amount and duration of alimony payments are restricted, and they can be modified or eliminated later.
Texas’ posture toward spousal maintenance is that it should be a helping hand, not a means to continue to rely on an ex-spouse for support.
In Texas, the spouse ordered to pay alimony or spousal maintenance is called the obligor.
The spouse who receives maintenance payments is called the obligee.
Either spouse from the dissolved marriage can be the obligor or the obligee.
In most cases, you have to be married for 10 years to meet the basic threshold of eligibility for court-ordered alimony. In Texas, the marriage begins on your wedding day and does not end until the court issues its final decree of marriage dissolution.
Example: Your ex-spouse filed for divorce after nine years and six months. However, it took seven more months to finalize. In this case, the marriage will be determined to have lasted 10 years and one month — long enough to be eligible for maintenance, assuming you meet the other requirements.
If you were not married 10 years, you could still be eligible if at least one of the following is true:
- the other spouse committed violence against you or one of the children,
- the other spouse committed adultery or inflicted cruel treatment upon you,
- the asking spouse has an incapacitating disability that arose during the marriage, or
- a child of the marriage has a physical or mental impairment which prevents you from earning enough income while caring for the child, — Tex. Fam. Code § 8.051
There are two ways to get alimony in Texas.
One of them is to work out an arrangement with your spouse outside of court. This is called contractual spousal support. You and your parting spouse, with a family law attorney, voluntarily agree on the amount, frequency, and duration of alimony payments. You should also address what happens to those payments if one of you should die, remarry, or come into a more secure financial situation. A Texas judge must approve the contract before it can take effect.
The other way is to qualify for court-ordered spousal maintenance. If you meet the state’s criteria for eligibility, then a family law judge will order your ex-spouse to pay you each month up to 20 percent of their average gross monthly income or $5,000, whichever is less.
Judges decide on a case by case basis whether a spouse is entitled to court-ordered maintenance payments. While the family codes are a guide, judges evaluate each case and may choose not to grant alimony in certain circumstances.
Alimony will not be granted if:
- the marriage did not last 10 years and neither spouse committed violence against the other or any of the children within two years of filing for divorce
- neither spouse nor any children were physically or mentally disabled at the time of the divorce
- both spouses can support themselves separately after divorce
Even when statutes appear to be met, the court still has discretion. For example, a judge may not give alimony to a spouse who cannot demonstrate diligence in seeking suitable employment or developing useful job skills. — Tex. Fam. Code § 8.053(a)
We should note that alimony awards can be reversed on appeal, as it was in the Matter of Marriage of McCoy (Tex. App. — Texarkana 2018). In this case, a trial court awarded the wife two pickup trucks, the house, and $500 a month in spousal support for five years when her husband failed to answer her divorce petition or even appear in court.
However, the husband successfully appealed the trial court’s ruling. The appellate court said:
“The trial court abused its discretion in awarding the wife spousal maintenance under Tex. Fam. Code Ann. § 8.051(2)(B) because the wife did not offer any evidence regarding what job skills she possessed or regarding the efforts she has made, if any, to secure employment that would allow her to work more hours or that would allow her to earn a higher income. In addition, she did not offer any evidence of her efforts, if any, to develop the necessary skills to enhance her opportunities to secure employment that would provide for her minimum reasonable needs.”
The court may also determine whether one spouse’s disability truly hinders their ability to earn money, as it did in Tellez v. Tellez (Tex. App., Dallas, 2010). Here, the appeals court upheld a trial court which had awarded the wife only three years of spousal maintenance instead of the indefinite duration she’d sought for her disability, which was a list of ailments including asthma, hypertension, neuropathy, allergies, arthritis, and depression.
Though the wife was awarded alimony, she was not entitled to more than three years since her ailments did not prevent her from holding a job.
In Texas, a judge will order periodic payments to the spouse receiving court-ordered maintenance. Payments are typically made each month and are due on the date the judge sets in the final divorce decree.
If the court orders spousal maintenance, it can be paid monthly directly from the paying spouse to the receiving spouse.
However, the court may also order that a portion of the paying spouse’s disposable income be withheld by their employer and distributed monthly to the receiving spouse. — Tex. Fam. Code § 8.101
The court can order this withholding from the paying spouse’s wages or salary even if they are not behind on payments.
If the spouses agree to contractual alimony through a mediation process, such as collaborative divorce, they can set the amount and frequency of payments. They can even choose to settle spousal support in one lump sum immediately after the divorce. A judge must still approve the arrangement.
Alimony is not taxed as income for the receiving spouse, and the paying spouse cannot deduct it on their taxes.
Before January 1, 2019, the paying spouse was allowed to deduct the yearly amount of alimony on their taxes, providing they actually made the payments. The receiving spouse had to declare the yearly amount as taxable income.
The 2017 Tax Cut and Jobs Act ended that. Now, alimony has no bearing on either spouse’s annual taxes.
Since Texas generally disfavors court-ordered spousal maintenance (alimony), and does not intend it to be permanent, there are a number of ways it can end.
Under Certain Circumstances
The obligation to make future alimony payments ends when:
- the receiving spouse dies or remarries. — Tex. Fam. Code § 8.056(a)
- the receiving spouse begins living with a new romantic partner. — Tex. Fam. Code § 8.056(b);
- there is a substantial change in either the paying or receiving spouse’s circumstances, however, this is not an automatic termination of payment, and must be achieved through a modification process. — Tex. Fam. Code 8.052
Note: Contractual alimony can end under the above circumstances, however, the contract must provide for those options. For example, a Texas appellate court ruled in 2013 that maintenance payments to the wife must continue even after she began cohabitating with another man. The ex-spouses’ contractual agreement provided that payments should end if the wife dies or remarries, but it said nothing about living with a new partner. — In the Interest of L.T.H (Tex. App. — Dallas, Dec. 18, 2013)
The Term has Expired
Contractual alimony, or spousal support, can go on indefinitely if the two spouses agreed to it in a collaborative or mediated divorce. It can also end at a time specified by the contract.
Court-ordered spousal maintenance runs out on the date specified in the final divorce decree. Statutorily, the maximum duration of payments depends on the length of the marriage, however, a judge will not always order the maximum duration.
The maximum duration is five years if:
- the spouses were married for at least 10 years but not more than 20 years, or
- the spouses were married less than 10 years, but maintenance is ordered due to one spouse’s criminal conviction of violence against the family within two years of when a petition for divorce was filed.
The maximum duration is seven years if the spouses were married for at least 20 years but not more than 30 years, and 10 years if the marriage lasted longer than 30 years.
— Tex. Fam. Code § 8.054(a), (b)