I am frequently asked by prospective clients whether they are eligible to receive alimony. In Texas, what other jurisdictions refer to as “alimony” is called spousal maintenance, and it is available to a spouse provided certain eligibility criteria are met. Here are the basics of spousal maintenance:
- To be eligible for spousal maintenance, you must lack sufficient property upon divorce to support your minimum reasonable needs and you must have been married to your spouse for at least ten years. If you have been married less then ten years, then you must show one of the following in order to be eligible for spousal support: (1) you have a disability that prevents you from earning enough income to support your minimum reasonable needs; (2) you are the custodian of a child of the marriage who requires substantial care and supervision because of a physical or mental disability that prevents you from earning sufficient income to support your minimum reasonable needs; or (3) the spouse from whom you are seeking support was convicted of family violence within two years of the date your divorce was filed or while your divorce is pending.
- If you are seeking spousal maintenance based on being married for at least ten years, you have to show the court that you have made an effort to earn enough income to support your minimum reasonable needs or that you are developing the necessary skills to earn enough income to support your minimum reasonable needs. In other words, you should be able to provide the court with evidence that you are actively looking for work or seeking to enroll in an educational program.
- Once you establish your eligibility for spousal maintenance, the court will consider a host of factors in determining the amount, duration, and nature of the support. If you are seeking spousal maintenance based on the duration of your marriage, then the maximum amount of time you can receive support is five years if your marriage was at least 10 years but not more than 20 years; seven years if you were married at least 20 years but not more than 30 years; and ten years if you were married for 30 years or more. If you are seeking maintenance based on a disability either to you or a child of the marriage under your primary care, then you can receive spousal maintenance for as long as the the condition exists and prevents you from earning sufficient income to support your basic needs.
- Amount of maintenance-A court may not order maintenance that requires the obligor (the spouse paying the support) to pay monthly more than the lesser of $5,000 or 20% of the spouse’s average monthly gross income. In other words, the most a spouse can receive per month in spousal maintenance is $5,000.
What are “minimum reasonable needs”? The Family Code does not define this term. Thus, determining what the minimum reasonable needs are for a particular person is a fact-specific determination which must be made by the court on a case-by-case basis. It does not mean, however, that you can avoid paying spousal maintenance simply by showing that the spouse seeking support is capable of earning the minimum wage. Conversely, the spouse seeking support cannot establish eligibility for support by showing that he or she lacks the ability to earn a level of income that would support the same lifestyle he or she enjoyed during the marriage. In other words, “minimum reasonable needs” does not mean just enough money to get by, nor does it mean enough money to sustain the lavish lifestyle a spouse enjoyed during the marriage.
One notable trend I have observed is claims for spousal support based on the care of a “special needs” child. “Special needs” is an umbrella term for a variety of diagnoses, but in most cases it involves autism or a learning disability of some kind. Numerous studies have documented the explosion of autism diagnoses. Unsurprisingly, the “special needs” surge has had a significant impact on family law proceedings, specifically in determinations related to child support and spousal maintenance. In the spousal maintenance context, the spouse seeking primary custody of a special needs child will often seek spousal support based on the child’s special needs. The argument is that the special needs child requires a level of care and supervision that prevents the parent from earning sufficient income to support his or her reasonable needs. Whether this argument will resonate with a given judge will depend on the judge and the severity of the disability. But, from what I have observed, autism and related learning disabilities do not typically require a level of parental care and supervision that prevents the custodial parent from working full time.
Need an Attorney to Help You Get Alimony?
Ben Carrasco is an experienced, dedicated family law attorney in Austin and will fight to win your legal case. Call Ben today at (512) 320-9126 or request a consultation online!