In Texas, what is “spousal maintenance?”

Spousal maintenance is commonly referred to as divorce alimony. Any dissolution of marriage involving one of the spouses seeking spousal maintenance is ideally handled by an experienced divorce attorney who knows how to make equitable divorce settlements. Factors determining eligibility for spousal support are many, but the main factors include (1) all the financial resources of the spouse seeking support; (2) education and employment skills, time necessary for education or vocational training; (3) duration of the marriage; (4) age, employment history, earning ability, as well as the emotional and physical well being of the spouse; and (5) the efforts of the spouse seeking spousal maintenance to obtain suitable employment.

Texas House Bill 901 became effective for divorce cases filed on or after September 1, 2011 and changed the factors required to be considered by a court in determining the nature, amount, duration, and manner of periodic payments for a spouse who is eligible to receive maintenance.

Here are a few of the more important changes regarding spousal maintenance awards:

1.  Previously, the maximum amount of spousal support the courts could award was $2,500 per month.  Today, the maximum amount is $5,000 per month.  (However the award cannot exceed 20% of the payer’s average gross monthly income.)

2. Depending on the length of the marriage, spousal maintenance can extend to a maximum of 10 years (if parties were married for more than 30 years).

3.  In order to receive “maintenance,” (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property to provide for their “minimum reasonable needs”, AND one of the following:

(1) The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;

(2) The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;

(3) The recipient 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; OR

(4) The person ordered to pay support was convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit is filed.

In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance continue as long as the disability continues.

Call LaFour Law today and schedule a consultation with one of our divorce attorneys to discuss your issues and concerns related to spousal maintenance.  One of our experienced divorce lawyers can assist you in sifting through these important considerations—all of which can ultimately impact the quality of your life for years to come.

My husband and I are getting divorced. I want to keep the lake house, but he says it’s his because it’s in his name, not mine. I think I co-signed the loan. What are the laws in Texas regarding property divisions during divorce?

Texas is a “community property” state.  Most likely, if the lake house was purchased during your marriage, it will be considered “community property” by the court in Texas.  However, we would need more information from you before our divorce attorneys could make an absolute determination.

Property possessed by either spouse during the dissolution of the marriage is presumed by the divorce court to be community property, unless the spouse can prove that it is their separate property by clear and convincing evidence.  The burden of proof of ownership of the lake house is on your husband who is claiming total ownership.  Community property consists of almost anything of value, such as real property, personal property, stocks, bonds, savings accounts, automobiles, retirement benefits, 401(k) accounts, IRA accounts, stock options, copyright royalties, patents, income, rental income, vacation homes, life insurance and virtually anything else of value.

Furthermore, when the courts in Texas have a couple before them with equal education and equal earning potential and when no children are involved, the divorce financial settlement is often split 50/50.

However, should the circumstances of the couple not be equal, the court may determine a different ratio is fair in distribution of the property.  Also, be aware that divorce and children can drastically alter the divorce agreement and distribution of wealth ratios. There have been extreme cases in which 90% of the property was awarded to one of the two parties.

Here are just a few of the factors the court may consider in making the determination for distribution:

  • the health of one of the spouses
  • the present earnings of the parties
  • the party raising the minor children of the marriage
  • separate property that a spouse may have (Usually this means property they owned prior to the marriage)
  • any inheritance that a spouse is likely to receive
  • the debts of the parties

Community and Separate Property

There are two types of property and debt that married spouses may have: 1) Community or 2) Separate.

Separate property is:

  • Anything owned before marriage and the appreciation or increase in value of that property
  • Inheritances or gifts (from others or from a spouse)
  • Personal injury damage awards (except for loss of earnings)
  • Property exchanged for other separate property

Community property is:

  • All property other than separate property acquired by either spouse during marriage (including wages)
  • Income, rent, or interest earned on separate property

Bottom Line: If this situation sounds like a carbon copy of your own, call LaFour Law today for a private consultation.  Let a LaFour Law divorce attorney who knows Texas divorce law make dividing marital property and debt equitable, less stressful, and more cost efficient for everyone.

Alimony: The Who, What and Why

Alimony is the commonly used term to describe the additional money, separate from the division of marital property and child support, that one former spouse pays to the other. Whether a spouse receives alimony is one of the most complicated and emotional aspects of a divorce. There are 2 forms of alimony: court-ordered spousal maintenance and agreed-upon contractual alimony.

Court-ordered alimony is limited in Texas because Texas is a community property state, meaning all property acquired during the marriage is community property. A judge divides the community property in a “just and right” manner as close to 50-50 as possible unless the 2 parties reach their own division agreement. To be eligible for court-ordered alimony, the requesting spouse must first prove that after the divorce is finalized and the community property is divided, he or she won’t have enough property to meet his or her minimum reasonable needs. Once that is proven, the requesting spouse will also have to prove at least one of the following:
• The marriage lasted 10 or more years and the spouse made a diligent effort to earn sufficient income or improve necessary skills to meet his or her minimum reasonable needs; or
• The other spouse committed family violence; or
• The requesting spouse has an incapacitating disability; or
• A child of the marriage has a physical or mental disability that prevents the spouse who cares for and supervises the child from earning a sufficient income.

Once a judge has deemed a spouse eligible for alimony, they must decide how much and for how long. The amount of court-ordered alimony is, in most cases, the difference between the spouse’s income and monthly expenses. Unfortunately there is no simple equation to use. The judge must also take into consideration:
• Each spouse’s financial resources after divorce, including separate property;
• How paying child support and/or spousal maintenance will affect both spouses’ ability to pay their bills;
• One spouse’s contribution to the other’s education, training, or increased earning power;
• The age, employment history, earning ability, and physical and emotional condition of the requesting spouse
• Each spouse’s education and employment skills and how long it would take the requesting spouse to acquire education or training;
• Whether either spouse has inappropriately spent community funds or disposed of community property during the marriage, called “fraud on the community”;
• Homemaker contributions;
• Marital misconduct of either spouse; and
• Family violence.

There are maximums that a judge can allocate towards alimony. The amount can be no more than $5,000 per month or 20% of the paying spouse’s average monthly gross income, whichever is lower. Court-ordered alimony is generally limited to the shortest reasonable time that allows the receiving spouse to earn enough to meet his or her monthly expenses. The exception here is if the spouse has a disability, is caring for an infant or young child, or can show a compelling reason for being unable to provide his or her minimum reasonable needs.

Contractual alimony, on the other hand, is a written agreement between the spouses that is entered into voluntarily. There are no court-imposed limits on eligibility, duration, or amount. The agreement will state the terms, including how much and for how long. The court will enforce the contract the spouses agreed upon unless it is beyond what the court would have ordered in amount and length of time.

Don’t think that alimony is set in stone! The paying spouse can come back to court later and request that the amount that he or she is paying to be reduced or eliminated altogether if there is a substantial change in the receiving spouse’s ability to meet monthly expenses or in the paying spouse’s ability to pay. In either case, you will need a lawyer that is on your side and will help you determine what you are looking at in your divorce. You need the LaFour Law Firm where we have the experience and expertise to guide you through the difficult process of divorce, including alimony. Call us at 713-223-7700 to schedule an appointment.

Back to Basics

Your marriage has fallen so far south, you feel like you are living on opposite poles. You have decided you are ready for divorce, but now what? Here are some of the basics that you’ll need to get started.

Texas is a no-fault divorce state, which means that you can file for divorce whether or not you or your spouse is at fault for the breakup of your marriage. The only reason that you need to give the court for wanting a divorce is that your marriage is “insupportable.” That is not to say that you can’t file for divorce if you or your spouse is at fault. You still can. If an at-fault divorce is filed, the court will assign blame to you or your spouse for any wrongdoing. Common examples of this are adultery, cruelty, and abandonment.

You need to look at your marriage and decide which to file. A no-fault may be easier to file, so you don’t have to worry about proving the wrongdoing to the court. On the other hand, the court can choose to take the wrongdoing into consideration in deciding the “just and right” way to divide your property.

Texas is also a community property state. This basically states that when you and your spouse were married, you became a community. All of the property from before the marriage and acquired during the marriage is now either separate property or community property.

Separate property is basically what you or your spouse owned before your marriage, is received by you or your spouse as a gift or inheritance during your marriage, or is personal injury awards to you or your spouse during your marriage. Simply put separate property is yours and only yours. Everything that is not separate property is then community property. Community property is split as equally as possible between you and your spouse. Keep in mind, while the court is looking for a “just and right” manner to spilt property, they can also consider whose fault it was for the break up, if 1 of you misused your money, any difference in your incomes, both of your ages and physical health, and who will have custody of the children, if there are any.

There is also spousal support, which is basically alimony and the Texas courts call it spousal maintenance. If you want to spousal maintenance or you feel like you should receive it, find out if you are eligible first. All cases start at $0, unless the one paying is accused of domestic violence. For the court to consider awarding spousal maintenance, you must show that you are unable to support yourself (basically meet your minimum reasonable needs) and one of three items. You must prove you are unable to support yourself due to a physical or mental disability, or your child requires substantial supervision or care, or show that you were married for more than 10 years. The court determines how much and for how long spousal maintenance will last, but they do place maximums of $5,000 per month and 10 years on it, barring special circumstances. The court may look into many aspects of your life including how long you were married and your education and employment skills.

Keep in mind that divorces are complicated and exhausting. There are so many details to go into that you are going to need a very strong attorney on your side. You need The LaFour Law Firm where they have experience and will walk you through your case. Call them at 713-223-7700 to schedule an appointment.