One of the most important questions that many people have when they are about to file for divorce is in regard to alimony. Alimony, or spousal maintenance as it’s known in Texas, refers to monthly payments made by one spouse to another after a divorce case is final. Many states offer a variety of reasons for alimony to be ordered, but it is fairly uncommon in Texas, the reason being that it is difficult to qualify. To qualify you must:
Be a spouse;
Lack property to meet minimum reasonable needs; and
Meet one of the bases for maintenance outlined by statute
“Minimum reasonable needs” is not defined by statute, and thus, is an ambiguous phrase. However, many courts have considered things like mortgage payments, property taxes, rents, utilities, car payments, gas, groceries, and the like to be “reasonable needs.” Proving to the court that you will not have enough money post-divorce to pay these things is the first step in obtaining an award for alimony payments.
However, as you may have noticed, the rule doesn’t say “lacking the funds” to meet your needs, it actually says “lacking property” needed to meet your minimum needs. That means a court will look at much more than just your job income post-divorce. Courts will look at things like the value of any income-producing property you own, the value of any separate property you have, and most importantly, the value of any property awarded to you in the divorce. There is no magic number to determine if you will be considered to meet your minimum reasonable needs, however many people who receive real property, buyouts of equity, portions of retirement accounts, or similar items of property usually will not be able to qualify.
Assuming you don’t receive much property in the divorce, does that mean you automatically qualify for support payments? Not yet. After you’ve been able to show you can’t meet your minimum reasonable needs, you need to fit into one of the four categories courts have laid out to qualify. They are:
You were married 10 years and are unable to earn sufficient income;
There was family violence in your marriage;
You are disabled and unable to earn sufficient income;
You care for a disabled child and are prevented from earning sufficient income.
Spouses who were not married 10 years and who don’t fit into the other three categories will not qualify, regardless of whether or not you can meet your minimum needs. Note that the 10-year requirement isn’t a prerequisite if you have had family violence, are disabled, or care for a disabled child. However, if you own enough separate property or were awarded enough in the divorce, you likely won’t be awarded maintenance payments.
Circumstances where spouses have been found to not be able to earn sufficient income include:
- When a homemaker out of work for 40 years had to return to the work force post-divorce without having developed any work skills;
- When a former spouse who didn’t have secondary education could only find jobs paying minimum wage;
- When a newly-licensed realtor needed a year to be able to get her business “rolling”
The Court cannot disqualify you for payments just because you are employed or if you hold a degree. The Court will look at all circumstances to determine your eligibility.
It may seem extremely difficult to qualify for court-ordered maintenance, and it is. The way Texas courts make up for the difficulty in qualification is that we do not have a law keeping property division at a strict 50/50 split – disproportionate shares of the community estate can be awarded. Keep in mind that you and your spouse are also free to come to your own agreements regarding spousal maintenance payments.
It is important to note that maintenance determinations vary significantly on a case-by-case basis. The attorneys at Duffee + Eitzen would be more than able and willing to assist you in divorce proceedings and requests for spousal maintenance.