How Is Alimony/Spousal Support Determined After Divorce?

The purpose of spousal maintenance in Texas (court-ordered alimony) is to provide temporary and rehabilitative support for a spouse after a divorce. The higher-income spouse usually wants to avoid it and the lower-income spouse believes they really need it. Fortunately for everyone involved, there are specific eligibility requirements that help sort it out fairly.

Establishing Eligibility

To be eligible for spousal support the spouse asking for it must prove that they are 1) the spouse, 2) lacks sufficient property to provide for minimum reasonable needs, and 3) has met one of the four statutory bases for spousal maintenance (i.e., ten-year marriage, family violence, disabled spouse, or disabled child).

Minimum Reasonable Needs

The Texas Family Code does not define “minimum reasonable needs” which is often a point of contention in a spousal maintenance fight. It is a fact-specific inquiry decided on a case-by-case basis. Courts have generally considered a spouse’s ability to pay the following expenses as evidence of meeting the spouse’s minimum reasonable needs:

  • mortgage or rent payments
  • property taxes
  • utility bills
  • auto payments
  • home, medical, and auto insurance
  • credit union dues
  • gas
  • groceries
  • credit cards
  • uncovered medical expenses
  • drugs and medicine
  • clothing
  • child care
  • transportation costs

Generally, the courts will award spousal maintenance on minimum reasonable needs – not necessarily on the standard of living before the divorce nor minimum wage laws.

Insufficient Property

To determine if a spouse lacks sufficient property to provide for minimum reasonable needs, courts consider the spouse’s monthly income, the value of any income-producing property, the value of the spouse’s separate property, and the value of the property awarded to the spouse through the court’s division of the marital estate.

But it not always so straight-forward. For example, just because the spouse seeking spousal maintenance has access to valuable property, does not mean the court will consider that as an ability to meet minimum reasonable needs. An Amarillo Appeals Court held that the wife was not required to liquidate $250,000 worth of gold to meet her minimum reasonable needs.

Claim Based On 10-Years of Marriage + Inability to Earn Sufficient Income

The spouse seeking spousal maintenance just needs to establish that they have been married for 10 years or longer measured from the date of marriage to the date of trial.

The spouse also needs to establish that they lack the ability to earn sufficient income to provide for their minimum reasonable needs. Some current factors the court will consider are the length of time the spouse has been out of the workforce, education level, and employment skills. Courts generally will not focus on any future ability to earn sufficient income if the spouse were to have additional training or education.

But the spouse seeking spousal maintenance cannot just simply claim to be unable to earn sufficient income. They will need to establish that they have exercised diligence in either (1) earning sufficient income to provide for their minimum reasonable needs or (2) developing the necessary skills to provide for their minimum reasonable needs during a period of separation and during the time the divorce is pending.

Claim Based on Family Violence

A spouse is eligible to receive spousal maintenance if they can prove the other spouse was convicted of or received deferred adjudication for a criminal offense that constituted an act of family violence as defined by the Texas Family Code – even if the marriage was less than 10 years in length. The violence must have been committed during the marriage and either (1) within the two years before the divorce was filed or (2) while the divorce was pending.

Claim Based on Spouse’s Disability + Inability to Earn Sufficient Income

In addition to proving an inability to earn sufficient income as explained above, a spouse is eligible to receive spousal maintenance if they show that they suffer from an incapacitating physical or mental disability – even if the marriage was less than 10 years in length.

The disability must show that the disability is incapacitating to the point that it prevents them from earning a sufficient income to meet their minimum reasonable needs. Examples meeting that criteria:

  • Wife suffered from severe back problems, osteoporosis, and a mass on her hip; steroid shots for her back and brittle bones caused by the osteoporosis prevented her from working.
  • Husband suffered from cerebral aneurysm, and although he was able to care for children and do household chores, his disability prevented him from returning to his former job.
  • Wife suffered from anxiety and neuromuscular disorder of the intestinal tract resulting in sudden onset of severe abdominal pain requiring debilitating nerve-block injections.
  • Wife suffered from brain damage, depression, and deteriorating disc in her lower back; she was able to cook, clean, and drive only in nonstressful environments.
  • Wife suffered from a “near nervous breakdown,” meniscus tear in her knee, and breast cancer, the last two of which required future surgeries.

But in an example where the court found that the disability was not incapacitating, the wife suffered from severe rheumatoid arthritis, but she was able to drive, cook, clean, and do other household chores.

Claim Based on Child’s Disability + Inability to Earn Sufficient Income

In addition to proving an inability to earn sufficient income as explained above, a spouse is eligible to receive spousal maintenance if they show that they are custody of a child of the marriage who is disabled – even if the marriage was less than 10 years in length.

Regardless of the child’s age, the child must have a physical or mental disability that requires substantial care and personal supervision that prevents the spouse from earning sufficient income to provide minimum reasonable needs.


Bottomline

If you’re anticipating a divorce might be in your future, it is important to consider whether spousal maintenance will become an issue. Call attorney Vince Handler today for a free personal consultation.