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Specialty tag(s): Alimony & Spousal Support Maintenance

Is the Rationale Supporting Texas’ Spousal Maintenance Laws Based in Today’s Economic Reality?

June 2, 2020

Alimony. Spousal Support. Spousal Maintenance. These are all terms to describe payments of money from one spouse to another, to ensure the financial well-being of the spouse being paid, after a divorce is final.  The Court can also order temporary payments during a couple’s separation while they are going through the divorce process,  but because the couple is still technically married and a spouse has a legal duty to support the other spouse financially, the orders are not considered alimony, spousal support or maintenance. As women’s roles in the home and the workplace have continued to evolve, the understanding of what alimony or spousal support should be has evolved too.

The modern view of spousal support is as “rehabilitative” in nature; payments from the higher income earner to the other spouse (who may or may not have been working outside the home during the marriage) for a few years to allow that spouse time to either get re-training or the education they need to get into, or back into, the workforce and make enough money that spousal support is no longer needed. There is no thought or mention of equalizing standards of living from marriage to post-marriage.

The fact that one spouse has typically stayed in a career throughout the marriage and therefore is at an even higher income level after divorce than before the marriage, and the other spouse has typically taken time off to have and raise the couple’s children, and is either starting a new career or re-entering an old one and is therefore not commonly at a high income-earning level post-divorce, is only part of the equation. Still, spousal support can and does help, especially when factors such as one spouses’ contribution to the others’ career, and the joint decision to for one to stay at home and forego creating an income earning potential can be shown.

Now consider Texas specifically. Spousal support, called spousal maintenance, will not even be considered for couples married less than ten years, except in very limited circumstances, and the spouse who is seeking maintenance must show they do not have sufficient property or income to meet their own reasonable minimum needs, and (a) has a physical or mental disability that prevents the seeking spouse from working; (b) has a child of the marriage with a severe disability that prevents the seeking spouse from working; or (c) lacks the ability to earn enough to provide for reasonable minimum needs. For a marriage lasting between ten and twenty years, the cap on the duration of spousal maintenance is three years. The cap on the amount is the lesser of $2,500/month or 20% of the gross income of the paying spouse.

Dallas spousal attorneys note that over a few decades, the purpose of alimony on a national level evolved from maintaining a somewhat similar lifestyle for divorcing spouses to maintaining “reasonable minimum needs.”  In Texas the shift has been from a public policy prohibiting or limited spousal maintenance to allowing rehabilitative maintenance.

However, even if spousal maintenance is not something the Court can order because neither spouse qualifies, it can still be used in a negotiated settlement.  This is why negotiated alimony, or contractual alimony, is often a better option for the spouse who has been the caregiver to any children of the marriage and who will be the custodial parent.  Even for spouses with no children, contractual alimony offers more options for both parties.  One spouse may be more interested in retaining a certain asset/business or property, while the other spouse may need liquidity in the form of alimony payments over a long period of time.  The Collaborative Divorce process, as well as any negotiated divorce, allows for negotiated alimony, which can accommodate both spouses’ needs. Contact the Austin, Plano or Dallas spousal support attorneys at Goranson Bain Ausley, for more information or to request a consultation.

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Thomas A. Greenwald

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