Alimony (that you agree to) vs. Court-ordered Spousal Maintenance
There are really two different kinds of "alimony" in Texas: the first is alimony that is negotiated, and the second is "spousal maintenance" that is court-ordered. Negotiated alimony is a contract between the parties. Often such alimony is agreed to in lieu of dividing up a particular asset. For example, perhaps the most valuable asset of a particular marriage is the husband's plumbing business, which the parties agree is worth $200,000. Husband and wife might agree that the husband can keep the business in the divorce, but agree that the husband will pay the wife $100,000 in alimony to offset the wife's loss. In contrast to agreed-to alimony, the Court can order "spousal maintenance" in certain circumstances. When (and under what circumstances) the court can order spousal maintenance is the subject of the next paragraph. Note that the law in Texas on spousal maintenance has been changed effective September 1, 2011. This article addresses the new law.
Qualifying for Court-ordered Spousal Maintenance
The Court can order spousal maintenance under certain conditions. In order to qualify, the spouse seeking maintenance must show that the duration of the marriage was 10 years or longer (exception: cases involving family violence), AND that the spouse seeking maintenance lacks sufficient income ( to provide for the spouse's "minimum reasonable needs," AND the spouse seeking maintenance either: a) is unable to earn sufficient income to provide for the spouse's minimum reasonable needs because of an incapacitating physical or mental disability, or b) has custody of a child of the marriage who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse's minimum reasonable needs, or c) lacks the ability to earn sufficient income to provide for the spouse's "minimum reasonable needs." For cases involving family violence, see below.
Family Violence and its effect on Spousal Maintenance
In addition to the eligibility for court-ordered alimony (called "Maintenance") described above, a spouse also can qualify for maintenance if the "paying" spouse was convicted of a crime (against either the spouse or the spouse's child) that constitutes "an act of family violence" (or received deferred adjudication for such a crime), and that crime occurred within two years before the date the divorce suit is filed, or occurred while the divorce is pending.
Limits on the Duration and Amount of Spousal Maintenance
If the marriage was 10 to 20 years, the limit on maintenance is 5 years (the Court can certainly order less than 5 years). 20-30 year marriages have a cap of 7 years of maintenance. And 30+ year marriages have a cap of 10 years. An exception to those caps occurs when the spouse seeking maintenance is unable to earn sufficient income to provide for her minimum reasonable needs because of an incapacitating physical or mental disability of the spouse or her child. The caps on the amount of spousal maintenance that can be awarded is the lesser of $5,000 per month, or 20 percent of the spouse's average monthly gross income. However, the purpose of spousal maintenance is generally to provide for the spouse's minimum reasonable needs, so there is no guarantee of getting $5,000 per month. Whether spousal maintenance is awarded in a case and for how long and how much is very fact specific to the individual case.
Termination of Spousal Maintenance
The obligation to pay court-ordered maintenance terminates on the death of either party or on the remarriage of the spouse receiving the maintenance. Also, after a court hearing, the court can terminate the maintenance order if the receiving spouse lives with another person with whom that spouse has a dating or romantic relationship in a permanent abode on a continuing basis. But remember, contractual alimony (that is, alimony that the parties have negotiated) can be very different, because when it is an agreed upon contract the purpose of the payments is sometimes to compensate a spouse for giving up a particular piece of property (like a business), and in that situation the party receiving alimony is unlikely to agree that the alimony should cease just because she moves in with a paramour. The Court can also terminate maintenance if there has been a material and substantial change in circumstances in the factors that caused the award of spousal maintenance in the first place.
Temporary Support While the Divorce is Pending vs. Post-divorce Alimony
It is important to understand that a Texas court looks at the question of whether alimony should be paid while the divorce is pending very differently from the question of whether alimony should be paid post-divorce. Thus far, we have discussed post-divorce alimony, which is not at all easy to qualify for, and is very limited in time and amount. Now we will discuss a different question, which is: What about temporary spousal support, while the divorce is pending: how do Texas courts look at the question of whether to award money from one spouse to another while the divorce is going on?
Temporary Spousal Support while the Divorce is Pending
In Texas, while the divorce is pending (which can be as little as 60 days or as long as year or more), the courts consider the husband and wife to still be married. Being married means that you have a legal duty to support your spouse financially - while you are married (which means prior to the Final Decree of Divorce being signed). So, often a Texas court is asked to make "Temporary Orders," while the divorce is pending, awarding money from spouse to the other. Generally, the courts are just trying to get the household bills paid, so if the breadwinner has vacated the house, and the homemaker remains in the house with no income, it is very common for the court to award temporary spousal support (money from one spouse to another) to ensure that the bills get paid. The amount of temporary spousal support that gets paid (or not) is usually a critical question to both sides, and very often has an important impact on the ultimate direction that the divorce takes.
"But someone should tell her to just get a job!"
Texas law sort of agrees with that commonly heard refrain, in that the law instructs Texas courts to be reluctant in awarding post-divorce spousal maintenance, unless the spouse seeking maintenance has exercised "diligence" in earning sufficient income to provide for the spouse's minimum reasonable needs or developing the skills to provide for the spouse's minimum reasonable needs during a period of separation and during the time the divorce is pending. But this requirement does not apply to a spouse who is disabled or has custody of a child who is disabled.
"Is it just a math formula?"
No, the determination of whether to award post-divorce spousal maintenance in Texas is very fact-specific. In other words, there are a number of factors the court can consider in making the decision whether to award spousal maintenance, such as what assets the spouses control, education, the length of the marriage, the age or health of the spouse, hiding or disposing of community assets, contributions of a spouse to the education of the other spouse, contributions as a homemaker, etc.
Is alimony tax deductible?
Whether post-divorce alimony is tax deductible to the paying spouse (and reportable as income to the receiving spouse) depends in large part on what the purpose of the post-divorce alimony is, and also how the award is structured in the divorce decree. If structured to be tax deductible in the divorce decree and consistent with IRS rules, then post-divorce alimony is often deductible to the paying spouse and reportable to the receiving spouse. But caution: if the purpose of agreed-upon alimony is not for the post-divorce support of a spouse but rather to compensate that spouse for giving up other assets, the IRS may not so readily allow the payments to be deductible. This article is not tax advice, but rather is general information about the divorce process. Always consult a CPA on tax matters.
What if I get awarded alimony and he/she doesn't pay? Or, "Can they really make me pay it?"
First, if the spousal maintenance is court ordered, and if the paying spouse is employed, then the spousal maintenance payments can be withheld from the paying spouse's paycheck, garnished just like child support. Ultimately, if the payments are not paid, then the receiving spouse will likely file a "Motion for Enforcement," seeking to hold the paying spouse in contempt of court for not making the payments. Whether the court will hold the paying party in contempt is always a serious question, and depends in large part on how the alimony is structured and how the divorce decree is worded. It is a highly technical question that cannot entirely be answered here, but generally spousal maintenance and alimony orders can be enforced.
Factors Particular to Your Divorce
Above all, it is important to understand that the facts and dynamics of each divorce are different, and there are no cookie-cutter answers to these questions. A Texas court will consider many factors in making a determination about post-divorce maintenance, everything from the education of a spouse to marital misconduct of the spouse seeking maintenance. Therefore, it is really vital that you discuss such questions with an attorney who is experienced in family law, preferably an attorney who is Board Certified in Family Law by the Texas Board of Legal Specialization.