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What is the purpose of spousal support or alimony?
Spousal maintenance is a claim for periodic payments from the future income of one spouse for the support of the other spouse. It is designed to provide temporary and rehabilitative support for a spouse after the dissolution of a marriage. It is not the same as contractual alimony. For spousal maintenance, the requesting spouse must be statutorily eligible to receive spousal maintenance, and there are limits as to the amount that can be paid and how long it can be paid. There are no such eligibility requirements or restrictions with contractual alimony, and the parties can agree to whatever terms they desire. It is a rebuttable presumption that spousal maintenance is not warranted unless the spouse seeking it has exercised diligence in either (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 of dissolution of the marriage is pending.
Eligibility for Maintenance
In order to be eligible to receive spousal maintenance, the person requesting it must prove that the person (1) is a spouse, (2) lacks sufficient property, including the spouse’s separate property, to provide for the person’s minimum reasonable needs, and (3) has met one of the four statutory criterion for spousal maintenance (married for at least 10 years, family violence, disabled spouse, or disabled child of the marriage).
Although the Texas Family Code does not define “minimum reasonable needs”, the courts generally consider that term to mean the ability of a spouse to pay the following expenses: mortgage or rent, property taxes, utility bills, car payment, insurance (home, medical, car), clothing, food, gas, credit cards, child care, uninsured medical expenses, prescriptions and medicines. The court must determine the facts of each case when considering a spouse’s minimum reasonable needs.
If the court determines that a spouse is eligible to receive spousal maintenance, it must consider the nature, amount, duration and manner of periodic payments by considering relevant factors such as (1) each spouse’s ability to provide for that spouse’s minimum reasonable needs independently; (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 contribution by one spouse to the education, training, or increased earning power of the other spouse; (6) the marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and (7) other factors as well.
How is spousal support calculated?
The maximum amount of spousal maintenance that can be ordered is the lesser of $5,000.00 or 20% of the spouse’s average monthly gross income. “Gross income” includes, but is not limited to, (a) 100% 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; and (d) 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, spousal maintenance and alimony.
However, it does not include (a) accounts receivable; (b) benefits paid in accordance with federal public assistance programs or the Temporary Assistance for Needy Families (TANF) program; (c) Department of Veterans Affairs service-connected disability compensation; (d) supplemental security income (SSI), social security benefits, and disability benefits; or (e) workers’ compensation benefits.
If spousal support is awarded, the spousal support order must state (a) the amount, (b) who will receive the payments (“obligee”) and who will make the payments (“obligor”), (c) when and how the payments will be made (e.g., weekly, monthly, by check, money order, or cashier’s check), (d) where the payments will be sent, and (e) how long the payments will be made.
How long will I have to pay spousal support?
The duration of the spousal maintenance order must be limited to the shortest reasonable time that allows the petitioner to earn sufficient income to provide for his or her minimum reasonable needs. The maximum time for payment of spousal support depends on the length of the marriage and whether there was family violence or if there is a disabled spouse or a disabled child of the marriage. The length of time that spousal maintenance can be paid ranges from one month to no more than ten years. If a spouse is
disabled or if there is a disabled child of the marriage, spousal support may be paid as long as the spouse meets the eligibility requirements.
The obligation to pay spousal support ends on the death of either party or on the remarriage of the person receiving the spousal support. It also ends if the court, after a hearing, finds that the person who has been receiving the spousal support cohabits with another person with whom the receiving spouse has a dating or romantic relationship in a permanent place of abode on a continuing basis.
Can the spousal support be modified?
Yes. The amount of spousal support can be reduced if the paying party files a motion and after a hearing the court finds that the party has shown a material and substantial change in circumstances. There cannot be a motion to increase the amount of spousal support.
What happens if I don’t pay spousal support?
If the obligor does not make the court-ordered spousal support payments as stated in the order, the paying party may be held in contempt.
Can my wages be garnished to pay for spousal support?
Yes. An income withholding order for payment of court-ordered spousal support may be issued to the obligor’s employer. The employer is obligated to withhold the amount of the spousal support directly from the obligor’s paycheck. However, an income withholding order cannot be issued for contractual alimony unless the contractual agreement specifically permits income withholding or the payments are not timely made under the terms of the contract.
To learn if you may be eligible to receive spousal maintenance or liable to pay it, please contact the Law Office of Kim M. Pettit at (210) 558-4572 to schedule an appointment.