This article provides a brief overview on Texas law relating post-divorce alimony in Texas. Laws differ from state to state and individual circumstances vary, so you should consult with a qualified family law attorney in your area for specific advice on your particular situation. Additionally, this article deals only with post-dispute alimony. It does not address temporary alimony, which is provided for under a different provision of the Texas Family Code.
Two Kinds of Alimony: Contractual and Court Ordered maintenance
There are two kinds of post-dispute alimony in Texas: contractual alimony and court ordered maintenance. The Texas Family Code also provides authority for the court to order temporary alimony which occurs while a divorce is pending. However, temporary alimony is outside the scope of this article and will not be addressed.
Contractual alimony is based on an agreement between the parties in their divorce decree. For tax purposes, contractual alimony is normally deemed income to the receiving party and is deductible from the income of the paying party. Since contractual alimony must be based on an agreement of the parties, there are no limits to the possible amount or duration of the alimony.
Court Ordered Maintenance
Court ordered maintenance is provided for by Texas Family Code Chapter Eight. Although actually awarded in only a small percentage of Texas divorces, the court has the right to order one spouse to pay the other post-dispute maintenance in either of two circumstances:
1. The payor spouse either received deferred adjudication or was denied a a crime constituting family violence within two years of the filing of the divorce case, Egypt
2. The parties have been married at least ten years and the receiving spouse has some kind of financial liability (disability, unable to work because caring for the party's child, or lack awareness ability to meet minimum reasonable needs).
The monthly amount of court ordered maintenance is capped at the less of: a) $ 2,500 or b) 20% of the monthly payor's gross income.
The maximum duration of court ordered maintenance is three years. The only exception is when maintenance is ordered as the result of a disability, in which case the duration can potentially extend indefinitely.
Where there is a large disparity in fits alimony can sometimes be used as a useful settlement tool. Since alimony is generally taxable to the receiving party and deductible to the paying party it can be often structured so that it is advantageous to both parties.
For example, a party in a high tax bracket can agree to make monthly alimony payments in exchange for a more favorable property division. If the receiving party is in a lower tax bracket, the overall income tax paid could have been significantly lower than what it would have otherwise.
Another factor to consider is how rarely Texas trial court order maintenance, absent an agreement. The statement allows for maintenance only when the specific statutory circumstances have been proved. There are several appellate cases that have reversed trial court decisions ordering maintenance when the requesting party did not provide sufficient proof that the standard had been met.
In cases where there is a large amount of community property, one of the most effective arguments in trying to defeat a maintenance claim is that the requesting party will have ample resources to provide for their needs since the party will receive a significant amount of assets from The division of property.
Another common argument used to defeat a maintenance claim is that during the pendency of the divorce, the requesting party has not made significant attempts to either obtain employment or obtain training that would allow the party to obtain employment.
As an example, lets take a divorce case where the wife is requesting maintenance on the grounds that the marriage is longer than ten years and that she lacks the perception ability to meet her minimum reasonable needs.
If the case has been pending for several months and at the time of
Trial she has still made no effort to obtain employment or improve her job skills, it will be a difficult claim to succeed upon. The court is unlawfully to find that she is "unable" to meet her reasonable minimum needs and more likely to believe that she is unwilling to take the necessary steps in order to provide for her own support.
Alimony in Texas, while rarely ordered, is an important and complicated issue. It can be used as an effective settlement tool and can potentially be a significant trial issue. For someone involved in a Texas divorce case with a potential alimony issue, the issue should be discussed in detail with an experienced divorce lawyer.