Spousal Maintenance in a Texas Divorce

 Posted on June 10, 2015 in Spousal Support

To promote a more effective property division in a high asset divorce, Texas courts recognize and enforce two different types of spousal support.

Statutory Maintenance

The Legislature enacted Section 8 of the Family Code about twenty years ago, with the apparent intent to expand the law over time. But that no longer seems to be the case, as the edict has been expanded only once, and the political winds are now blowing in the opposite direction – Florida, New Jersey, Illinois and several other states have all significantly scaled back their alimony laws in recent years.

A judge may award limited alimony in limited circumstances. These restrictions include:

• Length of the Marriage: The union must have lasted at least 10 years. Marital fault is admissible, and an attorney can sometimes argue that the marriage would have lasted longer if not for the misbehavior of the offending spouse.
• Limited Earning Capacity: The spouse requesting maintenance must lack the ability to "earn sufficient income to provide for the spouse's minimum reasonable needs," a term that is fact-specific and not defined in the family vode or case law.
• Disabled Child: This term is rather broadly defined as a child "of any age who requires substantial care and personal supervision" that significantly inhibits the custodial parent's income.
• Disabled Spouse: In most cases, the requesting person must be utterly incapable for even part-time work.

There is a legal presumption that alimony is unwarranted unless the spouse seeking support has diligently sought to obtain suitable employment or develop the skills necessary to become self-supporting seeking suitable employment.

Contractual Maintenance

If the requesting spouse does not qualify for statutory maintenance but the parties still believe it would be appropriate, to avoid costly complex property litigation in divorce, contractual maintenance is an option.

Under the Internal Revenue Code, these payments are deductible on the part of the obligor and reportable as income by the obligee, which can work to the benefit of both parties. Typically, the payments must be due and payable monthly.

Although most complex divorce decrees contain a statement that the provisions therein are enforceable as contract, it is best if all the elements are clearly present, including:

• Offer and Acceptance: The terms must be clearly spelled out; "20 percent of the husband's income" is probably not enforceable.
• Consideration: The obligee spouse must explicitly either give something, or surrender something, to receive alimony.
• Mutuality: Sometimes known as a "meeting of the minds," the parties must agree to the same thing at the same time.

The maintenance contract can either be in the high net worth divorce decree itself or in an agreement incident to divorce (AID).

For a consultation in this matter, contact an aggressive Williamson County high asset divorce attorney. After-hours appointments are available.