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.