Monday, August 8, 2011

What is Spousal Maintenance and when is it available?

Texas has very limited laws regarding the availability of spousal maintenance. Spousal maintenance is defined under the Texas Family Code as “an award… of periodic payments from the future income of one spouse for the support of the other spouse.” (Tex. Fam. Code § 8.001) In other words, “spousal maintenance” is something of a misnomer – it is actually paid by a former spouse after the divorce is granted and the two persons are no longer married.

Under Texas law, a person is only eligible to receive spousal maintenance if:

1) the other spouse was convicted of an act of family violence that occurred during the two years immediately before the date on which the petition for divorce was filed, or

2) the marriage lasted longer than ten years and the spouse to receive maintenance cannot support himself or herself.

In general, a Texas court may not order spousal maintenance for longer than three years after the divorce is final, and the court will limit the duration of payments to the shortest period of time possible. However, a person may be entitled to receive spousal maintenance for a longer period of time if he or she has an incapacitating physical or mental disability, or is caring for a child with such disability.

Factors in determining whether to award spousal maintenance include:

* the relative financial resources of both spouses,

* the duration of the marriage,

* the age and earning ability of the spouse seeking maintenance,

* the contribution of the spouse as a homemaker,

* infidelity or fraud during the marriage,

* the spouses’ respective education and employment skills, and

* one spouse’s contribution to the other’s earning power.

These factors are not exclusive. In Texas, there is a presumption against spousal maintenance, and it is not available unless the person requesting spousal maintenance has been diligent in seeking employment and improving his or her job skills and employability.

Lastly, the amount of spousal maintenance cannot exceed the smaller of $2,500 per month or twenty percent of average gross income per month of the spouse who is ordered to make payments.

In summary, spousal maintenance is not available unless the party requesting such payments can overcome the presumption against an award of spousal maintenance by providing evidence supporting the various factors, and – even when awarded – the payments are for a limited amount and only for a limited time.

This blog was prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.