Alimony, Support, Maintenance…Oh My!
Spousal maintenance, sometimes referred to as “alimony,” is an award of recurring payments from the future income of one spouse for the support of another. The purpose is to provide support for a specified period of time to a spouse who lacks the ability to earn an income sufficient to support themselves. If parties are unable to reach an agreement about spousal maintenance, then the court decides the need for financial support on a case-by-case basis. Courts are required to consider several factors including: each spouse’s financial resources (including how paying child support or spousal maintenance will affect ability to pay own bills); each spouses age, employment history, earning ability, physical and emotional condition; each spouse’s education and employment skills and their contribution to the other spouse’s attainment of education and earning power; marital conduct, including inappropriate spending or disposal by either spouse of community assets; duration of the marriage; contribution to the household as a homemaker; and any pattern of family violence.
The mere fact that a spouse has a professional degree will not disqualify that spouse from receiving spousal maintenance, provided that the requesting spouse can provide sufficient evidence to show that he/she is unable to financially support their minimum reasonable needs. This can come into play when one spouse set aside their career or education to run the household and/or stay at home with the children. Regardless of the education or work experience the homemaker may have, courts are typically sensitive to the fact that the homemaker spouse will require some financial assistance after the divorce while they are inserting themselves back into the workforce or obtaining vocational skills for purposes of employment marketability.
Parties are free to create any spousal maintenance agreement they find mutually amenable. The court, however, is limited by Texas statute and may not order maintenance that requires a spouse to pay more than $5,000 per month or 20% of their average gross monthly income, whichever is lower. The maximum length of ordered spousal maintenance is determined by the length of the marriage. Generally, spousal maintenance is not awarded if the marriage lasted less than 10 years, unless there is a history of family violence or a disabled spouse or child from the marriage. Marriages lasting at least 10 years, but not more than 20 years are limited to no more than 5 years of maintenance. Likewise, marriages lasting at least 20 years, but not more than 30 years may receive financial support for a period up to 7 years. Lastly, marriages lasting longer than 30 years are limited to no more than 10 years of spousal maintenance. Still, the duration of maintenance is limited to the shortest reasonable period needed for the receiving spouse to be able to provide for their minimum reasonable needs.
It is commonly known that spousal maintenance ends at death or remarriage of the recipient, but it may also end if the recipient co-habitates with a new romantic partner. Maintenance agreements are modifiable when there is a material and substantial change in circumstances, and cohabitation that includes intimate relations may qualify as a substantial change if the cohabitation changes the recipient’s financial situation. However, what qualifies as cohabitation is not clearly defined and the burden falls on the claiming party to prove the change, so it could make any attempt to modify a costly enterprise.