One of the scariest thoughts when contemplating divorce is, “How am I going to pay to live?” Now, imagine that you are the spouse who has no idea a divorce is in your future. When both spouses work, and earn sufficient income to support themselves, spousal maintenance may be less of an immediate concern and more a matter of fairness and equity. It is important to note that spousal maintenance and child support are two very separate legal and financial issues. If a divorcing spouse requests maintenance in their petition for dissolution, the court will apply a set of factors to weigh and determine if, how long and how much spousal maintenance is proper to award. Note that in most cases, maintenance is designed to be temporary, while the spouse receiving maintenance prepares to be self-supporting on their own.
Eligibility for maintenance
In an active divorce case where the court has proper jurisdiction over the parties, the court considers whether, “the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs.[i]” The court will also consider any allegations of family violence as well as the length of the marriage and whether the spouse seeking maintenance cares for a child with disabilities.
Factors in determining maintenance
Once the court determines a spouse is eligible to receive maintenance, the court shall determine the nature, amount, duration and manner of periodic payments. The following is a general list of factors for a court to consider:
- Ability to financially support oneself;
- Education, training and job skills;
- The length of the marriage;
- Age and employability of the spouse;
- Bad or fraudulent acts of a spouse;
- Contribution to spouse’s education;
- Property brought to the marriage;
- Contribution as a homemaker;
- Contribution to spouse’s education;
- Marital misconduct, family violence, and more.
Duration of a maintenance order
After reviewing maintenance eligibility and factors, the next step is to determine how long. Courts may order spousal maintenance to continue for no longer than five, seven or 10 years after the date of the award. The court considers the factors above in determining duration of a maintenance order. The goal is to provide a recipient spouse maintenance, for “the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse’s minimum reasonable needs, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs is substantially or totally diminished…[ii]”
Amount of maintenance
In Texas, there is a maximum amount of spousal maintenance a spouse can be ordered to pay. The order may not exceed $5,000 or 20 percent of the spouse’s average monthly gross income.[iii] In determining gross income to calculate the amount of maintenance there are a list of factors in the Texas Family Code to be applied. When the court approves an income withholding order, the amount of maintenance is automatically withheld from one spouse and directed to the other.
Modification and termination and enforcement of maintenance orders
Spousal maintenance orders shall automatically terminate when a recipient spouse remarries or there is a death of either spouse. Maintenance is also terminable with a court hearing if the recipient spouse is in a cohabitating relationship with another. Maintenance orders are modifiable with a hearing and proof of a substantial change in circumstances. To enforce a maintenance order when a spouse fails to pay can also require a court hearing and a possible finding of contempt of court for failure to keep a maintenance obligation.
This article is intended to be a very basic overview of the issues involved in determining who may receive spousal maintenance and for how long and in what amount. Please consult The Barrows Firm for more information.
The Barrows Firm can provide additional information and resources on temporary and indefinite child support for minor and adult children with disabilities.
If you would like more information about The Barrows Firm, P.C., please contact the firm by calling (817) 481-1583. The Barrows Firm is located downtown Fort Worth at 500 East Belknap Street, near the Tarrant County Courthouse and the Tarrant County Family Law Center.
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[i] Tex Fam Code Sec. 8.051
[ii] Tex Fam Code Sec. 8.054(2)
[iii] Tex Fam Code Sec. 8.055