Spousal Support

The Texas Governor signed House Bill 901 on June 17, 2011.  The law is effective for Texas divorce cases filed on or after September 1, 2011.  (If your divorce was filed before that date, but it is still pending on 9/1/11, the law will not apply to you.)  In 1995, Texas became the 50th state to pass a law providing for spousal support and its spousal support law has been one of the most restrictive in the nation.  The reason for this is that Texas is a community property state.  In a community property state, upon divorce most of the marital assets are divided roughly evenly (50/50).  There are some factors that can lead a court to vary from the presumption that each person should receive fifty percent (50%) of the property, such as fault in the break-up of the marriage.  Because each of the parties usually gets fifty percent (50%) of the marital property, Texas has long felt that if someone gets their half of all the property, why should they also get spousal support, too?

The new law provides potentially increased relief to beleaguered spouses who have been out of the work force, are disabled, are victims of family violence, or are the primary custodians of a disabled child.

Major changes to the spousal support law are:

The maximum amount of spousal support that courts may award increases from $2,500 to $5,000.00 per month, although it is still limited to twenty percent (20%) of the payor’s average gross monthly income.

The duration of spousal support is extended from a maximum of three (3) years to a maximum of five (5), seven (7) or ten (10) years, generally depending on the length of the marriage.  (See below, for an explanation of the duration issue.)

The law clarifies that if a person has primary care for a disabled child, the custodial parent may be prevented, because of the child’s disability, from earning sufficient income to meet the custodial parent’s minimum reasonable needs, thereby qualifying him or her for spousal support.

The law also clarifies that a person may not be held in contempt for failing to pay spousal support that is in an agreed order (where the parties entered into an agreement or contract) and which extends beyond the period of time provided under the law.  The only remedy available is a civil suit.

In order to receive “maintenance,” (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property or income to provide for the spouse’s “minimum reasonable needs”, AND meet one of the following specific conditions:

(1) The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;

(2) The marriage must have lasted for ten (10) years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;

(3) The recipient 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; OR

(4) The person ordered to pay support must have been convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two (2) years of the date the suit is filed.

Under the previous law, under most circumstances, the court could only order maintenance for a maximum of three (3) years, regardless of the length of the marriage. Under the new law, the court can order maintenance to continue for:

(1) Five (5) years if the parties were married less than ten (10) years and the maintenance is awarded due to family violence;

(2) Five (5) years if the parties were married more than ten (10) years, but less than twenty (20) years.

(3) Seven (7) years if the parties were married more than twenty (20) years, but less than thirty (30) years;

(4) Ten (10) years if the parties were married for more than thirty (30) years.

In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance to continue as long as the disability continues.

However, in all circumstances, the law provides that the Court shall order maintenance for the shortest reasonable period that allows the recipient to earn sufficient income to meet his or her reasonable needs.  (So, for instance, the Court may order maintenance to be paid for four [4] years while someone completes their college education.)

You can only qualify for spousal support if you fit into one of these very narrow circumstances.  Most divorcing spouses DO NOT receive spousal support.  However, if you fit into one of these defined categories that are outlined above, you may be able to get spousal support at the time of your divorce.

This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.  Janis Alexander Cross of Buckner & Cross, L.L.P. would be happy to talk with you to discuss your legal options!