When is it appropriate to award spousal maintenance in a divorce suit?
How much maintenance is appropriate? For how long after the divorce should the payments continue? The Fifth Court of Appeals recently explored these issues in Tellez v. Tellez, No. 05-09-01139-CV (Tex. App.—Dallas July 12, 2011). There, the ex-wife appealed the final decree of divorce wanting more money in spousal support and wanting the payments to continue indefinitely. Id.
Before spousal maintenance can even be awarded, the trial court must first find that the requirements of § 8.051 of the Texas Family Code have been met. The statute states that spousal maintenance may only be awarded in two situations. The first requires a conviction or a deferred adjudication for a crime of family violence committed by the spouse from whom maintenance is being requested. Tex. Fam. Code § 8.051(1). The act of family violence must have occurred either two years before the filing of the suit for divorce or while the suit was pending. Id.
Alternatively, a court may order spousal maintenance if the marriage was for ten years or longer and the spouse asking for maintenance lacks sufficient property to provide for her minimum reasonable needs. Id. at § 6.051(2). In addition, the trial court must also find that the asking spouse has an incapacitating mental or physical disability that prevents her from supporting herself, that the asking spouse is the custodian of a child of the marriage who has a mental or physical disability and requires substantial care and personal supervision and so prevents the spouse from outside employment, or that the asking spouse “clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs." Id.
What constitutes a minimum reasonable need is a fact specific determination. In re Hale, the ex-wife requesting maintenance worked outside the home yet made only $867.00 a month. 975 S.W.2d 694, 698 (Tex. App.—Texarkana 1998, no pet.). After determining that the ex-wife was eligible to receive maintenance, the trial court considered the factors of § 8.052 to determine the nature, amount, duration, and manner of maintenance payments. Id. On appeal, the appellate court declined to consider minimum wage as the amount that would provide for one’s minimum reasonable needs holding “it is common knowledge that the minimum wage, standing alone, is usually inadequate to support a family." Id. Rather, the court considered the ex-wife’s monthly expenses and compared it to her income. Id. Finding that it was just barely enough to meet her average monthly expenses, the appellate court upheld the trial court’s judgment awarding spousal maintenance. Id.
By contrast, in Tellez, the ex-wife argued on appeal that she should have been given more money because, even with the trial court’s award of spousal maintenance, her monthly income failed to cover her monthly expenses. No. 05-09-01139-CV. The appellate court held that a shortfall of funds alone was not enough to justify an increased award of spousal maintenance. Id. Though monthly expenses are considered, there is no statutory requirement that spousal maintenance is meant to entirely eliminate a shortfall between one’s income and one’s expenses.Id.
Absent a disability, award of spousal maintenance may not continue indefinitely. Section 8.054(a) of the Family Code states that an award of spousal maintenance may not remain in effect for longer than three years and that the trial court must limit the duration of the order to the shortest reasonable period that would allow the spouse seeking maintenance to obtain appropriate employment. However, if the spouse seeking maintenance is doing so because of an incapacitation or disability, the court may order maintenance to continue for as long as the incapacitation is in place. Id. at § 8.054(b). A spouse claiming disability need not introduce expert medical testimony to prove her disability. Brooks v. Brooks, 257 S.W.3d 418, 425-26 (Tex. App.—Fort Worth 2006, pet. denied). Additionally, a trial court is not required to make an express finding of disability or incapacity before awarding spousal maintenance indefinitely. See In re Bruin, 04-04-00893-CV (Tex. App.—San Antonio April 13, 2005 no pet.) (mem. op.).
Yet the trial court in Tellez found that illness, even chronic illness, is not the same thing as disability or incapacitation, and the appellate court upheld the trial court’s findings. No. 05-09-01139-CV. Though the ex-wife had an assortment of health issues including nerve damage, diabetes, asthma, hypertension, arthritis, allergies, and depression, there was no finding that the ex-wife’s employment and inability to support herself was a result of her illnesses. Id. There must be a causal link between the spouse’s disability and her inability to support herself through appropriate employment. See Smith v. Smith, 115 S.W.3d 303, 309 (Tex. App.—Corpus Christi 2003, no pet.).
Though the Texas Family Code narrowly defines eligibility requirements for spousal maintenance, all other issues relating to awards of maintenance—such as the amount of money one spouse is ordered to pay and length of time payments are ordered to continue—are decided on a case by case basis. Because maintenance awards are a fact specific determination and available only in limited circumstances, the experience and skill of an attorney is invaluable to any party seeking and wanting to maximize the benefit of spousal maintenance.