How to File for Spousal Support in Texas

In Texas, court-ordered, post-divorce spousal support, otherwise known as spousal maintenance, is difficult to come by. In short, there is no court-ordered alimony in Texas. However, the Texas Family Code does recognize that there are some limited instances in which a recently divorced individual may need financial assistance for a period of time – due to a physical or mental disability, for example – and has provided guidelines pursuant to which the Court may grant it.

Contractual Alimony vs. Court-Ordered Spousal Maintenance

Contractual Alimony

While a court cannot order alimony, Texas allows for a contractual alimony agreement to be reached between spouses and included as part of their Final Decree of Divorce. In fact, the only manner in which alimony may be ordered in a divorce case in Texas is by agreement. While the state does have very strict standards by which court-ordered spousal maintenance is administered and enforced, the terms of this “contractual alimony,” including the amount and the duration, are as agreed upon by the two spouses. Terms are not imposed on them by the Texas court system.

Should problems arise down the road, the court can only enforce the alimony provisions to the extent the court would be able to enforce a normal contract. The Texas Family Code sets forth a number of ways that spousal maintenance may be enforced, including withholding from earnings and contempt, but these remedies are not available to enforce contractual alimony.

Spousal Maintenance

In limited circumstances, courts in Texas may order one spouse to pay another a measure of support for a time. In order to qualify for court-ordered spousal maintenance, Texas law says that one spouse must prove that after divorce he or she will lack sufficient property, including the community property the spouse receives in the divorce and the spouse’s separate property, to meet his or her minimum reasonable needs.

In addition, the spouse must prove at least one of the following:

  • The marriage has lasted at least ten years and the spouse does not have the ability to secure employment earning enough to provide for the spouse’s minimum reasonable needs.
  • The requesting spouse is caring for a disabled child of the marriage and those responsibilities do not allow him or her to earn sufficient income to provide for the spouse’s minimum reasonable needs.
  • The requesting spouse cannot earn sufficient income him or herself due to an incapacitating disability which occurred during the marriage.
  • The paying spouse has either been convicted or received deferred adjudication for committing an act of family violence within two years before the date the divorce is filed or while the case is pending.

How is spousal maintenance calculated in Texas?

Because the circumstances surrounding every marriage and divorce are different, there is no hard and fast rule used to calculate the amount of spousal maintenance one spouse will be ordered to pay another. The Texas Family Code includes a laundry list of some of the relevant factors a court should consider, including but not limited to things like education, employment, age, employment history, duration of the marriage, marital misconduct, and the contribution of a spouse as a homemaker during the marriage. However, there is a cap on the amount that can be ordered of $5000 per month, or 20% of the spouse’s average monthly gross income, whichever is lower.

How many years do you have to be married to get spousal maintenance?

In most cases, the Texas Family Code provides that spousal maintenance may only be ordered for spouses that have been married for 10 years or longer. For marriages lasting between 10 and 20 years, support can be paid for a maximum of five years. For, marriages lasting between 20 and 30 years, support can be paid for a maximum of seven years. For marriages lasting over 30 years, spousal support can be paid for no more than 10 years. Of course, even for these long-term marriages, the spouse requesting maintenance must still show that he or she lacks the ability to meet his or her minimum reasonable needs, as discussed above.

There are other cases in which a court may order spousal maintenance, even if the parties have been married for less than ten years. In the case of a spouse who is disabled or is caring for a disabled child, the length of the marriage doesn’t matter. The receiving spouse can continue to receive support for as long as they remain eligible. For victims of family violence who have been married for less than 10 years, support can be paid for a maximum duration of five years.

Who pays the tax on alimony and spousal maintenance?

Historically, post-divorce spousal support payments, whether alimony or spousal maintenance, were taxable to the receiving party as income and tax deductible for the paying party. The new tax plan in 2017 brought dramatic changes. For all final decrees of divorce executed after December 31, 2018, alimony and support payments are no longer deductible. Now, the paying spouse is responsible for paying tax, at his or her tax rate, on the amount being paid to the receiving spouse. The receiving spouse will receive this support tax-free, and will no longer be required to report the payments as income on their own taxes.

This, of course, increases the overall cost of support for those paying contractual alimony, while decreasing the cost for the receiving spouse. A workaround that has been suggested and used by several couples has been to negotiate a lower monthly payment amount, taking the increased taxes into account.

The rules related to court-ordered spousal maintenance and alimony in Texas are complex. Because of this, it’s always a smart decision to speak with an experienced family law attorney who can offer advice and help ensure that your needs are seen to once the divorce is finalized. If you have questions, please call Orsinger, Nelson, Downing & Anderson at (214) 273-2400.