Legislative Changes to the Spousal Maintenance Provisions in the Texas Family Code

The provisions regarding spousal maintenance, set forth in Chapter 8 of the Texas Family Code, were radically modified in September 2011. The new statutes took effect on September 1, 2011 for all cases filed on or after September 1, 2011, with the exception to the inclusion of provisions regarding overpayments which apply to all cases pending on or filed after September 1, 2011. This article outlines the statutory changes for both families and practitioners alike.

Definition of Spousal Maintenance

The term “maintenance” is an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse. Tex. Fam. Code § 8.001(1). The Texas legislature intended that spousal maintenance should primarily provide a temporary rehabilitative measure for a divorced spouse whose ability for self-support is lacking or has deteriorated through the passage of time while the spouse was engaged in homemaking activities and whose capital assets are insufficient to provide support. The legislature further intended that spousal support should be terminated in the shortest reasonable time in which the former spouse is able to be employed or to acquire the necessary skills to become self-supporting. Only in circumstances in which the former spouse cannot become self-supporting by reason of incapacitating physical or mental disability should maintenance be extended beyond this period. Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 10.01, 1995 Tex. Gen. Laws 3543, 3577.

Eligibility for Maintenance

A spouse is only eligible for spousal maintenance if such spouse will lack sufficient property, including the spouse’s separate property, upon divorce to provide for his or her minimum reasonable needs. The statute was clarified so that the court may look at the recipient spouse’s separate property as well as the property they will receive in the divorce. Further, the old statute, which used the terms “appropriate employment” and “suitable employment” was replaced with the term “earn sufficient income” as a means of determining eligibility.

In all cases not involving family violence, the spouse seeking maintenance must have been married to the other spouse for 10 years or longer and lack the ability to earn sufficient income to provide for his or her minimum reasonable needs.

In cases involving family violence (set forth herein that the spouse from whom maintenance is requested was convicted of or received deferred adjudication for an act of family violence against the other spouse or their child, and the offense occurred within two years before the date the divorce was filed or while the suit was pending), the other spouse may be eligible for spousal maintenance without having to prove that he or she has been married for ten years or longer or that he or she is unable to earn sufficient income.

In the case of a spouse who is disabled, the spouse seeking maintenance has to be unable to earn sufficient income to provide for that spouse’s minimum reasonable needs because of an incapacitating physical or mental disability. Additionally, the statute applies to a spouse who must care for a disabled child with a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.

The statute was revised because the spouse caring for the disabled child could not qualify for spousal maintenance unless that spouse could not be employed outside the home at all. The statute was revised to look at that spouse’s income and whether it is sufficient to meet their minimum reasonable needs, without necessitating that the spouse not work outside the home at all.

In reviewing the language, it is important to note that the Family Code does not define “minimum reasonable needs” and to date there are no cases defining the term. Rather, the courts have held that determining what the minimum reasonable needs are for a particular individual is a fact-specific determination that should be made by the trial court on a case-by-case basis. Amos v. Amos, 79 S.W.3d 747, 750 (Tex.App.-Corpus Christi 2002, no pet.)

Factors in Determining Maintenance

The factors for a court to consider in awarding spousal maintenance were revised and elaborated upon in Section 8.052. First, the court must look at the asking spouse’s ability to provide for their minimum reasonable needs independently, considering the spouse’s financial resources upon divorce. This is in contrast to the prior statute which focused the analysis upon the spouse’s financial resources including separate and community property and liabilities upon divorce. Another factor is the education and employment skills of the asking spouse, and the time necessary to acquire such education or skills to earn sufficient income, which deviates from the prior statute which focused on whether the asking spouse could find “appropriate employment.” Marital misconduct was clarified to include adultery or cruel treatment by either spouse. Further, the statute considers whether there has been a history or pattern of family violence. Finally, the requirement to seek job counseling as provided by Chapter 304 of the Labor Code was removed.

Presumption

The presumption that there is no spousal maintenance is clarified in Section 8.053 to be a “rebuttable presumption” so that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in earning sufficient income to provide for the spouse’s minimum reasonable needs or developing the necessary skills to provide for the spouse’s minimum reasonable needs. This replaces the old requirement that the seeking spouse show they sought “suitable employment” and can become “self-supporting.”

Duration of the Maintenance Order

The duration of the maintenance order, found in § 8.054, was a tremendous change in the statute. If the spouses have been married to each other for less than 10 years and the spouse is eligible for maintenance because of family violence, the spouse may receive maintenance for no more than 5 years. If the spouses were married to each other for at least 10 years but not more than 20 years, the spouse may receive maintenance for no more than 5 years. If the spouses were married to each other between 20 to 30 years, the spouse may receive maintenance for no more than 7 years. If the spouses were married to each other for 30 years or more, the spouse seeking maintenance may receive maintenance for no more than 10 years.

The court is to keep the maintenance order to the shortest reasonable period that allows the asking spouse to earn “sufficient income” to provide for his or her minimum reasonable needs, unless the asking spouse’s ability to provide for the spouse’s minimum reasonable needs is substantially or totally diminished because of a physical or mental disability of the asking spouse, duties the asking spouse has as the custodian of an infant or young child of the marriage, or another compelling impediment to earn “sufficient income” to meet the spouse’s minimum reasonable needs. In the case of a disabled spouse or in the case of a disabled child of the marriage, if maintenance is ordered, it remains that the maintenance may continue for so long as the asking spouse meets the criteria of the applicable statutes and such is also subject to a motion to modify. The Code provides for the court on its own motion or on the motion of either party to order the periodic review of the maintenance order issued under these provisions.

Amount of Maintenance

The amount of maintenance has been raised to $5,000.00, or 20% of the payor spouse’s gross earnings, whichever is less. “Gross income” is now defined in Section 8.055(a-1) and is almost a mirror image of the gross income statutes in determining child support.

Termination

Spousal maintenance still terminates on the death of either party or remarriage of the receiving spouse and will also terminate if the receiving spouse cohabits with a person with whom the asking spouse has a dating or romantic relationship in a permanent place of abode on a continuing basis. This section is clarified from the old statute that provided for the termination of spousal maintenance if the asking spouse cohabitated with another person on a continuing conjugal basis. The Code also provides for spousal maintenance arrearages to remain outstanding even if the maintenance is terminated.

Modification of Maintenance Order

Sections 8.057(c)-(d) allow for the modification of spousal maintenance on the proper showing of a material or substantial change and a material and substantial change in any of the factors set out in Section 8.052 relating to either party or of a disabled child of the marriage.

Enforcement of Maintenance Order

The statute was also amended to clarify that an agreement for spousal maintenance or a court order for spousal maintenance may be enforced by contempt. However, the court may not enforce by contempt any provision of an agreed order for maintenance for any period of maintenance beyond the period of maintenance the court could have ordered under the statute.

Overpayment

Section 8.0591 was added to provide for overpayment of spousal maintenance. If an overpayment is not returned to the payor and the payor has to sue for said payments, the court shall order the asking spouse to pay for the payor’s attorney’s fees and costs unless good cause is shown why such should not be ordered. This is the only part of the statue that goes into effect for all cases pending on or filed after September 1, 2011.