How alimony is determined varies from state to state. If you and your spouse are calling it quits in Texas, alimony isn’t a given. You also shouldn’t expect a windfall, even if your spouse is a professional athlete, real estate mogul or oil baron. Dallas Divorce Attorney Abby Gregory answers 11 common questions about spousal support in Texas below.
1. What is the standard alimony allowance in Texas?
According to Abby, “The maximum alimony – or spousal maintenance as it is referred to in Texas – the court will order is $5,000 per month or 20 percent of the spouse’s average monthly gross income, whichever is less. So even in divorce cases where one of the spouses earns a sizeable income, that is the most you can expect. In addition, you must be married a minimum of 10 years in order to qualify for spousal maintenance in Texas.”
2. Really? I have friends who receive more alimony than that.
“Your friends likely negotiated contractual alimony into their divorce agreements. With a contractual alimony agreement, the sky is the limit and payment amounts can be much higher than the statutory maximum in Texas. Contractual alimony may also be of longer duration and can include a variety of other mechanisms based on the settlement agreed to between the soon to be ex-spouses.
“For example, the amount may change after each year or be cut in half after three years. It depends on the terms negotiated. Also, you can’t modify contractual alimony, though you may be able to modify court-ordered spousal maintenance under certain circumstances (see question No. 8),” Abby says.
3. How long can I expect to receive spousal maintenance following a divorce in Texas?
According to Abby, this decision is up to the court to decide. As she explains, “The court has complete discretion regarding the duration of spousal maintenance, but there are caps. According to the statute, the court may not order maintenance that remains in effect more than five years if the couple has been married 10 years, seven years if married for 20 years and 10 years if married for 30 years or more.”
4. How easy is it to qualify for spousal maintenance in Texas?
It’s probably more difficult to qualify than you think. “Spousal maintenance in Texas was designed to support the woman in her 70s who hasn’t worked her whole life or a stay-at-home mom who aspires to do more and just needs her rent and car payment paid while she executes her plan to transition into the workforce.
“If you’re seeking spousal maintenance in a Texas divorce, you have to prove to the court that you are unable to meet your minimum reasonable needs post divorce. The statute does NOT allow an award of maintenance sufficient to meet your current standard of living. Generally, those minimum reasonable needs include a roof over your head, a car, gas in your car and food on your table. It does not mean a private school for the kids, eating out at your favorite restaurants or taking annual summer vacations,” Abby says.
It’s important to note that it really is an uphill battle to get spousal maintenance in Texas, and the state expects you to find a job eventually.
According to Abby, “Where people often make a mistake is admitting during a deposition ‘I’m not trying to find a job’ or saying ‘I don’t know’ when the judge asks what plans they have following the divorce. Those are not good answers. The court will not take pity on you, because they won’t believe you can’t meet your minimum reasonable needs.
“In fact, the statute requires that you make attempts to get a job to meet your minimum reasonable needs, and you can’t PROVE you have attempted to find employment if you haven’t actually done so.”
5. I haven’t had a job outside the home for many years. Does the state of Texas really expect me to go back to work?
If you are capable of finding work to provide for your minimum reasonable needs, yes, you need to get a job or make preparations to reenter the workforce.
As Abby explains, “Just because you have been out of the workforce for 20 years, that doesn’t mean you can’t find a job as a receptionist or office manager or the like, especially if you have a college degree.
“However, you may be able to present a compelling argument to the court that you’re starting your own business, taking night classes, enrolled in nursing school, finishing your law degree, etc., and need support for a set period of time to complete coursework and then find a job. You need to have a detailed plan and timeline.”
6. Under what circumstances is alimony or spousal maintenance terminated in Texas?
“Aside from the aforementioned caps on duration, spousal support generally terminates upon the death of the recipient. It does not terminate on the payor’s death. That would become an obligation of his or her estate.
“Generally, the standard language in divorce agreements does include cohabitation and remarriage clauses that say if you remarry or cohabitate, contractual alimony payments would be terminated,” says Abby.
7. Do I have to pay taxes on alimony or spousal maintenance in Texas?
The paying party gets to deduct spousal support from their income taxes and the receiving party must pay taxes on those monies.
“So generally, if the spouse making the higher income gets to deduct alimony at 39 percent, and the person receiving only has to pay taxes on 20 percent, we basically say Uncle Sam makes up the difference,” explains Abby.
8. What if I’m the one paying spousal support, but my financial circumstances have significantly reversed. Can spousal maintenance be modified in Texas?
According to Abby, a Dallas divorce lawyer who represents affluent, high-net-worth individuals in Texas, “In order to secure a modification of spousal maintenance, you need to present a proper showing of a material and substantial change to your income.
“Say you were earning $1 million a year and now earn less than $100 thousand, or you’re on disability insurance and can no longer work, or your spouse is now working and earns more money, these may be some scenarios where the court might agree to modify your spousal maintenance agreement. As noted earlier, contractual alimony CANNOT be modified.”
9. I need to declare bankruptcy. Can I stop paying alimony or spousal maintenance?
No. It’s not dischargeable. “If you declare bankruptcy you still have to pay alimony or spousal maintenance, it’s not something that’s going to go away,” says Abby.
10. I’m afraid my spouse won’t follow through with my spousal maintenance or contractual alimony payments. How can I make sure he or she does?
Abby strongly encourages clients to take steps to obtain security for spousal maintenance in the divorce agreement from the paying spouse.
As she explains, “You should always secure the alimony or spousal maintenance with specific assets of your spouse. Then, if your ex defaults a specified number of times over a set number of days, your spousal support gets accelerated and you can collect it from enforcing the security agreement.
“Following default, you would get an interest in that asset – whether it’s a 401k, a brokerage account (that can’t go below a certain dollar amount), a house, a piece of property or something else. Remember, if your spouse goes broke, the courts can’t print money, so be prepared.
11. I’d rather receive a lump sum at the close of my divorce. How does that work?
According to Abby, “One of the big downsides of alimony is it keeps you in a financial relationship with your ex-spouse. So if you really want to cut ties, opting for a lump sum payment may be a good option. Many people like to have a lump sum of money to invest and manage as they see fit. Ask your family law attorney to help you weigh your options.”
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