Qualifying for Spousal Support, Alimony or Maintenance
The Texas Family Code requires that “each spouse has a duty to support the other spouse.” Consequently, during the pendency of a divorce suit, one spouse may be ordered to provide temporary “spousal support” so that each spouse is able to maintain the standard of living each enjoyed prior to the filing of the divorce petition.
Court Ordered Spousal Maintenance or "Alimony"
Spousal maintenance is defined by the Texas Family Code as “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.” Spousal maintenance is disfavored by Texas law and and may only be ordered by a court if:
- the spouse ordered to pay support was convicted of family violence within 2 years of the filing for divorce or during the pendency of the divorce; or
- the spouses seeking maintenance:
- is unable to earn sufficicient income to provide for the spouse's minimum reasonable needs because of an incapacitating physical or mental disability,
- has been married to the other spouse for 10 years or longer and lacks the abilitiy to earn sufficient income to provide for the spouse's minimum reasonable needs; or
- is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse's minimum reasonable needs.
Maintenance may not be ordered for periods of more than 5, 7, or 10 years depending on various factors. The 5 year maintenance period requires either that family violence occured for a marriage less than 10 years or the marriage lasted 10 years or more. The 7 year maintenance period requires the marriage to have lasted at least 20 years of more. The 10 year mainteance period requires the marriage to have lasted 30 or more years. Nonetheless, regardless of what period of duration the case may fall in, the court must limit maintenance to the shortest time that will allow the recipient spouse to meet their minimum reasonable needs, unless the recipient spouse suffers from an incapacitating physical or mental illness, is the custodian of an infant or small child, or there is another compelling impediment to earning sufficient income to provide for the spouse's minimum reasonable needs. However, if the qualifying reasons for maintenance is the requesting spouse's incapacitating physical or mental disability, or that spouse is the custodian of a child of the marriage who requires substatantial care and supervision, the court may order maintenance for as long as the critera applies.
A court may not order maintenance that requires a spouse to pay monthly more than the lesser of $5,00 or 20 percent of the paying spouse’s average gross monthly income. Maintenance terminates at the death of either party or upon the re-marriage of the recipient.
Contractual Spousal Maintenance
The divorcing parties are free to contract to terms and conditions of maintenance without being limited by the restrictions placed on the courts when ordering court ordered maintenance.