Alimony can be defined as a financial support provided by one spouse to the other spouse in the event of a divorce so that the other spouse could meet his/her minimum reasonable needs. However, Texas Family Code assumes that alimony is not necessary; hence, award of alimony in Texas is a rebuttable presumption in which the burden is on the spouse seeking support to prove (rebut) the need of alimony. There are three types of alimony awarded in Texas during the divorce litigation: temporary spousal support, contractual alimony, and maintenance.
Based on the facts presented, a Texas court may order a temporary spousal support for a spouse during the ongoing divorce litigation. This type of alimony differs from the other two, as there is no tax paid on this support money (income). Contractual alimony is not court ordered and the spouses themselves enter into a contract in which they agree on the duration and amount of money to be paid as alimony. As IRS treats the alimony money as income, the support seeking spouse has to pay income tax on this amount. Maintenance is the court ordered alimony which is only awarded if certain requirements are fulfilled. Like contractual alimony, income tax has to be paid on spousal maintenance also.
If the spouse seeking maintenance doesn’t have sufficient property (which includes separate property as well) to meet the minimum reasonable needs, then the court may order alimony support provided the following requirements are met:
Conviction or deferred adjudication for a criminal offense is found against the spouse (from whom maintenance is requested), which can be perceived as an act of family violence as described in the Texas Family Code (section 71.004) committed against the support seeking spouse or children of marriage in the two years prior to the filing of the divorce or during the duration of the divorce case; or
If the spouse seeking maintenance has an incapacitating physical or mental disability which impedes him/her from earning sufficient income to fulfill minimum reasonable needs, spouses in question are married for 10 years or longer with the spouse seeking maintenance not capable of fulfilling minimum reasonable needs independently, or spouse seeking maintenance has the custody of a child of the marriage (irrespective of the age) who has physical or mental disability which requires extensive care and personal supervision which hinders the custodial parent to earn enough money to fulfill his/her minimum reasonable needs.
Apart from the aforementioned requirements, the spouse seeking maintenance also has to show to the court that she/he made enough efforts to earn sufficient income and developed required skills so as to provide for her/his minimum reasonable needs during the separation & divorce litigation. The monthly amount of maintenance as given in the order is lesser of $ 5,000 or 20% of spouse’s average monthly gross income.
The duration of the maintenance also differs as it’s contingent on many factors. The court-ordered maintenance has a maximum duration of five years if the spouses were married for less than 10 years and the eligibility as discussed above is met, or the spouses were married for at least 10 years but not more than 20 years. If the spouses were married for more than 20 years but less than 30 years, then the spousal maintenance is for seven years. For more than 30 years of marriage, the duration of maintenance is ten years. However, if the maintenance is awarded on the basis of physical or mental disability of spouse seeking support or that of child as mentioned in the second point above, then the duration of the maintenance order continues till the time such disability stays.
Michael Busby Jr. is a divorce & family law attorney, who practices in Harris and Fort Bend Counties, Texas. He has been in practice for over 14 years and has tried over 300 cases. He is familiar with the policy and procedures of the Harris and Fort Bend County Texas family law courts. Our office is open until 8:30 p.m. on Wednesdays and Saturday from 9 a.m. to 1 p.m. for working folks. Michael Busby Jr. 2909 Hillcroft Suite 350 Houston, Texas 77057 (713) 974-1151 Visit me on the web at www.busby-lee.com