Each state in the U.S. has its own statutes about how alimony payments are awarded from one spouse to another. If you’re getting a divorce and there’s a significant income difference between you and your spouse, it’s a good idea to familiarize yourself with the laws surrounding spousal support in Texas.
When it comes to long-term spousal support, there are two primary types in the Lone Star State. Spousal support, or contractual alimony, is a voluntary decision made by the spouses as a part of the settlement negotiations. Spousal maintenance, on the other hand, is ordered by a court.
The laws surrounding spousal maintenance are a lot stricter in Texas than in other U.S. states. Depending on your situation, therefore, it might be beneficial to consider creating a contractual agreement.
Are you wondering how exactly spousal support and maintenance works in Texas? Let’s dive in and take a look at what you need to know.
The general definition of the term spousal support in the Oxford Dictionary is “financial support that a person is ordered by a court to give their spouse following a divorce.”
In Texas, though, court-ordered spousal support is actually referred to as spousal maintenance while a voluntary agreement between the spouses in regard to payment after a divorce is known as spousal support. You might also hear spousal support referred to as alimony. While there isn’t a difference in the meaning between these two terms, there is no use of the word alimony in Texas law.
Spousal support and spousal maintenance, however, are notably distinct terms. In the next section, we’ll explore the difference between them.
You’ll often hear the terms spousal support and spousal maintenance used interchangeably. Their definitions are not actually synonymous under Texas law, though.
Spousal support refers to voluntary payments made from one spouse to another after a divorce. Commonly, these support payments are agreed to by the spouses in their divorce settlement. Enforcement of spousal support involves the same methods that one would use to enforce any other contract in Texas.
Spousal maintenance, however, isn’t decided voluntarily and is instead ordered by the court in a divorce case. It is therefore enforceable as a court order.
There are three different types of spousal support worth understanding when you are getting divorced in Texas. These are temporary spousal support, contractual alimony, and spousal maintenance.
Temporary spousal support is exactly what it sounds like– spousal support that is only paid for a finite period of time. These payments are paid during divorce proceedings and don’t continue beyond a point in time when the court believes the spouse receiving support should be able to find another way to support themselves financially.
If you think you should receive temporary spousal support, you will need to file a Motion for Temporary Orders. Just because you file this motion doesn’t mean that you will be awarded interim support. Courts will only order this type of support if they believe it is both fair and necessary.
In some cases, a divorcing couple will choose to enter into a spousal support agreement voluntarily. Under Texas law, this is referred to as spousal support, but it is also sometimes referred to as contractual alimony.
In this instance, the spouse can choose how much spousal support is paid and for how long, and is typically created as a part of the divorce settlement. If the court accepts their contract then it will be enforceable as any other Texas and be included in the Final Divorce Decree.
Spousal maintenance is not voluntary but instead is ordered by the judge. Both parties in the couple don’t need to approve in order for the court to deem it necessary and fair. If one party in the divorce believes they should receive spousal maintenance, they will need to show the court that they won’t be financially able to fulfill their reasonable basic needs.
Spousal support is often one of the most divisive issues in a divorce. In many U.S. states, alimony is a major component of the property settlement judgment or agreement. Texas is quite a bit different from other states in this regard, as most divorces don’t include court-ordered spousal maintenance awards. The reason for this is that the requirements under the Texas Family Code are very strict.
We will discuss the qualifying factors a bit later on. However, the most common way that a spouse qualifies for court-ordered spousal maintenance in Texas is because they were married for at least ten years and lack the ability to earn sufficient income to take care of their basic needs.
It’s important to understand that the amount of money it takes to cover one's basic needs under Texas law is considered to be simply above the poverty line. In regard to this specific point, the matter of the standard of living that was maintained during the marriage is irrelevant.
Judges are required to award the minimum amount of money for the shortest period of time in order for a spouse to be able to meet these minimum reasonable needs.
Later on in the marriage, we will get into some of the specific nitty-gritty details about spousal support and maintenance in Texas. However, it’s worth understanding that some of the basic factors that can impact both the amount and duration of payments include:
Other than the point regarding spousal misconduct, these points all have to do with the supporting spouse’s ability to pay and the supported spouse’s financial needs. Considering that both of these circumstances can change over time, both the amount and duration of the payments can be modified at a later date by the court. In order to modify a court order of this type, the requesting party usually has to prove that financial circumstances have changed permanently, substantially, and materially.
In order to get voluntary or contractual spousal support in a Texas divorce, you and your partner will need to agree upon the terms and include them in your divorce settlement.
Court-ordered spousal maintenance, on the other hand, is decided on a case-by-case basis. There are four primary ways that a spouse can receive a spousal maintenance award, which are:
Either spouse has the option to request maintenance when they get a divorce in Texas. That being said, courts will only award support if the spouse requesting maintenance doesn’t have enough property to cover their basic needs. On top of that, at least one of the following circumstances also needs to exist:
There are a number of factors that the court will take into account in order to determine whether a spouse lacks the earning ability to provide for their minimum reasonable needs.
Some of the factors they will consider include:
The court will also look at additional factors, such as:
If you plan to ask for spousal maintenance in a Texas divorce, you will have to demonstrate that you have searched for training, educational, and employment opportunities diligently. In cases where the Affidavit of Support is being enforced, however, the due diligence requirement doesn’t apply.
It’s worth noting that Texas laws start every maintenance case with the assumption that it wouldn’t be appropriate to award spousal maintenance. The idea is that the requesting spouse will need to demonstrate that they have done their due diligence. This means showing that they have made a good faith effort to become financially independent by acquiring the necessary education or employment. The court will only move forward with the maintenance evaluation if this is shown.
Texas law limits how much support a court can order, which is actually fairly unique compared to other U.S. states. Awards for spousal maintenance must not be more than 20% of the spouse’s average monthly gross income or $5000 per month, whichever is less.
Judges will frequently order spousal maintenance in periodic payments. This commonly results in monthly payments.
Courts will sometimes issue an order to withhold income from the supporting spouse. In these instances, the employer of the paying spouse has to deduct maintenance payments directly from their paycheck and have it forwarded to the court agency.
Unfortunately, there is no quick-and-easy formula to help you figure out how much spousal maintenance you will receive, or if you will receive it at all. There are a number of different factors that they take into account in order to determine whether or not you receive spousal maintenance and, if so, how much.
In general, though, the supporting spouse may not be required to pay more than 20% of their gross monthly income or $5000 a month, whichever is less.
Until recently, spousal support payments were usually considered taxable income to the person that is receiving these payments. For the person that is paying the support, the payments were generally considered deductible.
However, this all changed with the 2017 Tax Cuts and Jobs Act. The way that spousal maintenance was taxed was significantly impacted by this, which went into effect on January 1, 2019.
Any maintenance agreements or orders that were finalized on or after this date aren’t considered income for the receiving spouse. At the same time, the paying spouse cannot deduct the payments from their income.
As you might imagine, this creates quite a bit of confusion for both parties involved. It might be a good idea to meet with an experienced tax attorney in order to make sure that you are dealing with spousal support payments in a way that is following the current tax laws.
If you’re awarded spousal maintenance payments by the court, the court might order that income is withheld from the supporting spouse’s paycheck which will then be remitted to the supported spouse. If you need to enforce an order for spousal maintenance, there are a number of different ways to go about it:
The decision regarding the duration of maintenance awards has to follow strict guidelines under Texas law. For example, if a spouse is ordered to pay support due to a specific condition such as a mental or physical disability, the payments can only continue to be made as long as the condition continues to exist. Courts have the ability to periodically review these support orders at a later date.
For maintenance orders that aren’t ordered due to a specific compelling reason such as that listed above, Texas law limits support in the following ways:
Judges are required under Texas law to order support for the short period of time necessary in order for the requesting spouse to be able to gain financial independence. This is the case except for those that involve a mental or physical disability, a custodial parent, or another compelling situation.
There are a handful of ways that maintenance orders can end before the initial termination date. These include:
Are you wondering if you should try and save money during the divorce process by representing yourself? You’ll want to read this article about getting divorced in Texas without a lawyer.
In most cases except for a handful of exceptional circumstances, you have to be married for at least ten years to receive court-ordered spousal maintenance in Texas.
If you and your spouse create a contract as a part of the divorce settlement that outlines spousal support payments, you are free to create whatever arrangement you can agree to so long as the court finds it isn’t unfair to one spouse.
The laws about spousal support and maintenance in Texas are quite restrictive compared to other U.S. states. Even if you do qualify for court-ordered spousal maintenance, the amount of money and the length of time will likely be stringent.
However, if couples are able to negotiate a contract for spousal support, they can create their own arrangement. This arrangement isn’t bound by the requirements outlined by Texas law. If the divorcing couple isn’t able to negotiate their own private contract, the fate of their alimony issues will be determined by a judge.
Are you worried that your spouse is going to be difficult during the divorce process? Make sure you check out these sneaky divorce tactics so you know what to watch out for.
If there has been a substantial and material change of circumstances since the first spousal maintenance order was issued, the court can change the order. The paying spouse has to keep meeting the requirements of the current order until the award has been formally changed, however.
If you made a request to modify spousal maintenance, you need to keep following the existing court order until a judge hears your request. It’s a serious offense to not comply with a court order. You could find yourself with bank liens, attorney’s fees, and even spending some time in jail.
If you are receiving spousal support from a contractual agreement and need to enforce the order, you can file a formal request with the court in order to seek help in enforcing the order.
Contractual alimony, or voluntary spousal support, isn’t bound by the same strict laws and qualifications as spousal maintenance in Texas. Depending on whether you are the supported or supporting spouse, and how you feel about spousal support being exchanged after your divorce, contractual alimony might be favorable or unfavorable to you.
Contractual alimony agreements don’t have to deal with any of the same rules when it comes to amount and duration as those for spousal maintenance orders. This means that you and your spouse can custom make an agreement that hopefully fits both of your needs.
For example, divorcing couples might want to create a scenario where one spouse can stay at home to take care of children after the divorce. Or, perhaps, a spouse requesting support might want to trade the interest they have in one asset to receive higher support payments. These agreements are voluntary contracts, rather than court orders, meaning that you can come up with terms that fit your needs without being bound by the same strict laws.
One major advantage of going this route when it comes to spousal support is that it doesn’t involve the courts. The more time you spend having a court decide your fate for you, the more money you will spend on lawyer’s fees and other costs.
To learn more about what to expect when it comes to your total divorce bill, check out our article on the cost of divorce in Texas.
Choosing to create a contractual alimony agreement also means that you aren’t risking an unfavorable outcome being ordered by the court. It keeps the decision about spousal support in the hands of both you and your spouse.
On the downside, contractual alimony is only enforced by the Texas Family Code to the extent that it aligns with the statutory requirements. This means that if one spouse doesn’t make the payments they agreed to in your settlement, you don’t have the same enforcement options as you would if it was court-ordered spousal maintenance.
For instance, let’s say that your spouse signed a contractual alimony agreement that said they would pay you spousal support for twenty-five years. However, given your situation, the court wouldn’t have been legally allowed to order spousal maintenance for a longer duration than ten years.
The court wouldn’t be able to hold your ex in contempt for failing to comply with the agreement’s terms if they stopped paying in year eleven after your divorce.
This doesn’t mean that the contract is completely unenforceable past this point. What it does mean, though, is you’ll have to take a different avenue.
This type of alimony contract is enforceable by contract in Texas. If your spouse wasn’t upholding their end of the bargain, you would be able to pursue a civil claim.
The state of Texas recognizes common-law marriages as being equally valid as traditional marriages. This means that the process for dissolving a common law marriage is the same as it would be if you had gotten formally married. However, in order to be able to get divorced when you are in a common-law marriage, you have to be able to prove that the marriage existed in the first place.
You can learn more about common law divorce in Texas here.
If you’re getting divorced in Texas, you might be overwhelmed by the complexity of the legal process. Of course, on top of that, getting divorced is probably also taxing both financially and emotionally. We believe that one of the best ways to get through a divorce in one piece is to arm yourself with as much knowledge as possible, as it can help to reduce stress and allow you to create a map of how the process will unfold.
At TexasDivorceLaws.org, we are committed to offering a library of resources to the people of Texas to help outline the most important aspects of Texas Family Law. If you’re looking for more information about divorce, marriage, and prenups, be sure to check out our vast selection of Texas Family Law articles.
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