Spousal maintenance is a set monthly payment that one spouse pays to the other, for a set period of time after a divorce case.
Texas Judges Can Award Spousal Maintenance (monthly payments to one spouse for the benefit of the other spouse) if:
- The couple was married at least 10 years (Most Common Way to Be Eligible); or
- The spouse is disabled with a disability that prevent the spouse from earning a living (marriage of any length of time); or
- Spouse 1 committed family violence against spouse 2 within the 2 years of the divorce case (spouse 2 may seek maintenance); or
- The spouse seeking maintenance is raising a child (of any age) that is handicapped, such that the spouse cannot work
Eligibility Requirements for Spousal Maintenance in Texas
Texas Family Code on Eligibility:
Sec. 8.051. ELIGIBILITY FOR MAINTENANCE. In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal jurisdiction over an absent spouse, the court may order maintenance for either spouse only if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and:
(1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section 71.004, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred:
(A) within two years before the date on which a suit for dissolution of the marriage is filed; or
(B) while the suit is pending; or
(2) the spouse seeking maintenance:
(A) is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
(B) has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
(C) is the custodian of a child of the marriage of any age 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.
Texas Cap of $5000 Per Month, or 20% of Gross Monthly Income (Whichever is Less)
Texas Cap of $5000 Per Month, or 20% of Gross Monthly Income (Whichever is Less)
If a person qualifies for spousal maintenance (as determined at question 1 above, the Texas courts consider the following factors when deciding on how much spousal maintenance should be awarded)
Texas Family Code on Spousal Maintenance
The legal factors that the court considers when deciding on Spousal Maintenance:
Sec. 8.052. FACTORS IN DETERMINING MAINTENANCE. A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including:
(1) each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;
(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
(3) the duration of the marriage;
(4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
(5) the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
(7) the contribution by one spouse to the education, training, or increased earning power of the other spouse;
(8) the property brought to the marriage by either spouse;
(9) the contribution of a spouse as homemaker;
(10) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
(11) any history or pattern of family violence, as defined by Section 71.004.
What Amount of Spousal Maintenance Will be Ordered By The Court In a Divorce?
Texas judges are supposed to order the minimum amount that will work, to cover reasonable needs of the spouse for the shortest time possible.
The maximum spousal support that will be ordered is 20% of the paying spouse’s gross monthly income, or $5000 per month, whichever is less.
Please read this entire webpage to understand what other factors will be used to come up with an amount of support, keeping in mind that there is a basic presumption against ordering spousal maintenance at all.
Texas Law on Amount of Spousal Maintenance:
Sec. 8.055. AMOUNT OF MAINTENANCE. (a) A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:
(1) $5,000; or
(2) 20 percent of the spouse’s average monthly gross income.
(a-1) For purposes of this chapter, gross income:
(A) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
(B) interest, dividends, and royalty income;
(C) self-employment income;
(D) net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
(E) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes regardless of the source, gifts and prizes, maintenance, and alimony; and
(2) does not include:
(A) return of principal or capital;
(B) accounts receivable;
(C) benefits paid in accordance with federal public assistance programs;
(D) benefits paid in accordance with the Temporary Assistance for Needy Families program;
(E) payments for foster care of a child;
(F) Department of Veterans Affairs service-connected disability compensation;
(G) supplemental security income (SSI), social security benefits, and disability benefits; or
(H) workers’ compensation benefits.
Texas Law Has a Presumption Against Spousal Maintenance If the Person Seeking the Maintenance Is Not Trying to Get a Job
The Texas family code makes it clear that if spouse 1 is seeking to obtain spousal maintenance from spouse 2 that spouse 1 must try to get a job, or develop the skills needed to make money. If spouse 1 does not try to get a job or go further their education, then the courts are encouraged not to grant any award of spousal maintenance.
Texas Presumption Against Spousal Maintenance Quoted From Texas Family Code
“Sec. 8.053. PRESUMPTION. (a) It is a rebuttable presumption that maintenance under Section 8.051(2)(B) is not warranted unless the spouse seeking maintenance has exercised diligence in:
(1) earning sufficient income to provide for the spouse’s minimum reasonable needs; or
(2) developing the necessary skills to provide for the spouse’s minimum reasonable needs during a period of separation and during the time the suit for dissolution of the marriage is pending.”
Judges are generally not supposed to order payments if the spouse seeking monthly payments is not looking for employment.
How Long Will the Spousal Maintenance Payments Last?
If you were married for 10-20 years, then the longest time that spousal maintenance can be paid is for 5 years.
If you were married for 20-30 years, then the longest time that spousal maintenance can be ordered is 7 years.
Texas Judges are supposed to order the maintenance for the shortest time possible, that will allow the spouse receiving payments to start making enough money to support himself/herself.
However, if a spouse is physically or mentally disabled, or caring for young children, or has another compelling reason, then maintenance should not be ordered for the shortest time but rather up to the maximum length of time as provided above.
Download Copy of Texas Laws on Spousal Maintenance Here:
What Amount Should You and Your Spouse Agree On During an Uncontested Divorce?
The Cook & Cook Law Firm has its website at “part as friends” for a reason. We really believe in the agreed divorce. Both spouses should take a realistic look at the information on this page.
There is an overall presumption against granting any spousal maintenance as part of a divorce settlement.
Spousal maintenance should only be agreed on in the event that the marriage has lasted 10 years or more, unless there was family violence or a disability, as explained in more detail above.
If awarded, the spousal maintenance should be for a minimum amount needed by a spouse to get back on his/her feet after the divorce.
When trying to come to an agreement on spousal maintenance, it is helpful to understand what would happen in a court setting, if you were to have a contested divorce trial. The reason that we have this assessment online is to help educate you on spousal maintenance, so that you and your spouse can come to a fair agreement on whether spousal maintenance should be a part of your divorce settlement terms.
If a client of Cook & Cook needs help determining spousal maintenance, this is the form that the client should submit to us, so that we may get a more complete picture from you of your particular situation.
Is Spousal Maintenance the Same Thing as Alimony? No.
Alimony cannot be ordered in Texas by any Court, unless it is entered as an agreement of the spouses getting divorced. This is always surprising to people that are unfamiliar with this particular part of Texas law. Because many people do not qualify to get spousal maintenance in accordance with the law (many marriages have not lasted 10 years or longer), spouses may be seeking alternative methods to come up with a fair settlement.
If the spouses agree to some sort of monthly alimony payment, then they can incorporate that into their divorce agreement. The agreement will be enforceable as a contract. This form of alimony in Texas is called “contractual alimony.”
Trial Exhibit for Temporary Orders on Spousal Maintenance or For Final Orders
After a long hearing, it can be difficult for the court or the mediator to have a complete memory of all of the evidence heard regarding spousal maintenance. To assist your court, this exhibit serves to, in seconds, remind the court of the relevant factors at play under the Texas Family Code, as well as know what factors are applicable to the particular case at hand.
For spouses parting ways as friends, filling out the above assessment and using this form can help a person better understand the outcome at court, and thus negotiate for himself/herself with a more knowledgeable footing.
As the hearing is taking place, you can check box all relevant factors. Then, during summary argument, present this chart to the Judge as a visual aid.
|Spouse 1||Spouse 2|
|Spouse 1: ______________ Spouse 2: _________________|
|Date of Marriage: ________________|
|Number of Children Born of Marriage: ____________|
|Ages of the Children (example: 1, 5, and 6): ______________|
|Is either Spouse 1 or Spouse 2 supporting a handicapped child?|
|Does either Spouse 1 or Spouse 2 pay child support?|
|Spouse 1 or 2 stayed home to raise kids?|
|What is the highest education level of Spouse 1, 2?|
|Employment history of Spouse 1, 2?|
|What is the Gross Monthly income of Spouse 1, Spouse 2?|
|Monthly Expenses of Spouse 1, 2 (to meet minimal needs)|
|Physical or emotional conditions of Spouse 1, 2|
|Family Violence Prosecuted Against Spouse 1, 2? (last 2 years?)|
|Did Spouse 1 or 2 commit adultery?|
|Did Spouse 1 or 2 deplete community estate? (excessive spending or fraud)|
|Does Spouse 1 or 2 have a separate estate to help support him/her?|
|If Spouse 1 or 2 is unemployed, is he/she trying to find employment?|
|Who should pay spousal maintenance?|
|How much maintenance should be paid? ($5,000 cap, up to 20% gross)|