Alimony & Spousal Maintenance

A judge can order temporary spousal support while the divorce case is pending and the couple is still married. Until the divorce is granted at the end of the case, the income each spouse earns is usually community property and belongs to both spouses, unless a premarital or marital property agreement changes the rules.

For example, if the wife earns much more than the husband, then while the divorce is pending, the judge can order the wife to pay temporary spousal support and may also order her to pay some of the bills for the husband.

Because money earned during the marriage may belong to both spouses, the judge is essentially allowing one spouse access to some of the marital income to pay bills while the case is pending. Temporary spousal support is within the judge’s discretion.

Very different rules apply to support ordered after the divorce is final. Texas did not have post-divorce “alimony” until 1997. Even now, Texas does not generally call it alimony. The Texas Family Code refers to it as spousal maintenance.

Spousal maintenance is not automatic. A spouse asking for maintenance must meet legal eligibility requirements, show financial need, and overcome the limitations built into Texas law.

This is why it is important not to assume that temporary support during the divorce means post-divorce maintenance will also be ordered. The standards are different.

To be eligible for spousal maintenance in most cases, the marriage must have lasted at least ten years, and the spouse asking for maintenance must lack the ability to earn sufficient income to provide for that spouse’s minimum reasonable needs.

The spouse must also lack sufficient property, including separate property and property awarded in the divorce, to provide for those minimum reasonable needs.

The ten-year period is measured from the date of marriage to the date of the divorce trial. So if a couple has been married for nine years and eight months when the divorce is first filed, spousal maintenance can still be awarded if the final trial happens after the ten-year anniversary.

The spouses do not need to have been married for ten years on the date the divorce case was filed, and it does not necessarily matter whether they lived together for the full ten years.

“Minimum reasonable needs” is not specifically defined in the Texas Family Code section on spousal maintenance. Texas courts have considered expenses such as mortgage payments, rent, property taxes, utility bills, auto payments, insurance, gas, credit card payments, uninsured medical expenses, clothing, child care costs, and transportation expenses.

The spouse seeking maintenance usually introduces proof of income and a budget summarizing expenses. This is often called a Financial Information Statement. The budget may also list other expenses such as lawn care, pool maintenance, college costs for older children, education costs for the parent, loan payments, pet expenses, subscriptions, and similar items.

Ultimately, it is mostly up to the judge to decide what is reasonable and what counts as minimum needs.

The court will consider all income available to the spouse asking for spousal maintenance, including pay, commissions, disability income, rental income, and Social Security income.

The court will also consider what community property is awarded and what separate property a spouse has. However, the spouse asking for maintenance is not required to spend down long-term assets, liquidate all available assets, or incur new debt before qualifying.

For example, a wife awarded $600,000 from her husband’s 401(k) plan may still qualify for spousal maintenance depending on the facts.

Under certain circumstances, a marriage that lasts less than ten years can still result in an order to pay spousal maintenance.

• There has been a conviction or deferred adjudication for family violence.
• A spouse cannot support himself or herself because of an incapacitating physical or mental disability.
• The spouse seeking maintenance is the custodian of a severely disabled child of the marriage who requires ongoing care and support.

These exceptions are fact-specific and should be analyzed carefully with an attorney.

Texas law creates a rebuttable presumption that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence.

That means the spouse seeking maintenance must show diligence in earning sufficient income to provide for minimum reasonable needs or in developing the necessary skills to provide for those needs during a period of separation and while the divorce case is pending.

In plain English: a spouse asking for maintenance usually needs to show real effort toward employment, training, education, or self-support unless a disability or other serious limitation applies.

Spousal maintenance can be ordered after divorce for limited periods depending on the circumstances and the length of the marriage.

• Up to 5 years if there was a conviction or deferred adjudication for family violence.
• Up to 5 years if the parties were married for at least 10 years but less than 20 years.
• Up to 7 years if the parties were married for at least 20 years but less than 30 years.
• Up to 10 years if the parties were married for at least 30 years.
• Potentially longer if a spouse is severely disabled and unable to support himself or herself, or is caring for a severely disabled child.

The court is generally required to limit the duration of maintenance to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for minimum reasonable needs, unless the spouse’s ability to do so is substantially or totally diminished.

The monthly amount of spousal maintenance in Texas is limited to the lesser of:

• $5,000 per month; or
• 20% of the average gross monthly income of the spouse ordered to pay maintenance.

Gross income can include wages, overtime, bonuses, interest, dividends, self-employment income, net rental income, and retirement benefits. Gross income does not include certain categories such as return of principal or capital, accounts receivable, Social Security, SSI, federal welfare benefits, or Veterans benefits.

A husband and wife can agree on spousal maintenance. Without an agreement, the judge, not a jury, decides whether to award maintenance, how much it will be, and how long it will last.

A judge can also order wage withholding for maintenance. The same amount is typically awarded each month, but the judge can order varying monthly payments, such as $2,000 per month for 18 months and then $1,000 per month for 12 months.

In general, a judge may be more likely to award maintenance if the judge feels empathy for the spouse requesting it, is frustrated with the spouse being asked to pay, or if the spouse being asked to pay is a high-income earner. A spouse awarded a large amount of community property, especially cash, is less likely to receive maintenance.

When a court determines that a spouse is eligible to receive maintenance, the judge considers all relevant factors when deciding the nature, amount, duration, and manner of payment.

• Each spouse’s ability to provide for minimum reasonable needs independently.
• The education and employment skills of the spouses.
• The time needed for education or training to earn sufficient income.
• The duration of the marriage.
• The age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance.
• The effect of child support or maintenance obligations on each spouse’s ability to meet minimum reasonable needs.
• Excessive spending, abnormal expenditures, destruction, concealment, or fraudulent disposition of property.
• One spouse’s contribution to the education, training, or increased earning power of the other spouse.
• The property brought to the marriage by either spouse.
• The contribution of a spouse as homemaker.
• Marital misconduct, including adultery and cruel treatment.
• Any history or pattern of family violence.

Spousal maintenance ends upon the death of either party, the remarriage of the person receiving maintenance, or a court finding that the person receiving maintenance cohabits with another person in a dating or romantic relationship in a permanent place of abode on a continuing basis.

The person ordered to pay maintenance can later file a motion asking the court to reduce or end the payments if there has been a material and substantial change reflected in the statutory factors for either former spouse or, when applicable, a disabled child of the marriage.

Payments for alimony or spousal maintenance are generally no longer tax deductible for the paying spouse if made under a divorce or separation agreement executed after 2018.

The former spouse receiving those payments generally does not include them in taxable income under current federal tax rules for post-2018 divorce or separation agreements.

Different tax rules may apply to older alimony agreements and orders made before January 1, 2019, especially if those agreements were later modified. Anyone dealing with maintenance payments should speak with a qualified tax professional about the specific tax treatment of their order or agreement.

Spousal maintenance is highly statute-driven in Texas. These are the primary Texas Family Code sections that often shape the analysis.

• Sec. 8.051 — Eligibility: who may qualify for maintenance and under what circumstances.
• Sec. 8.052 — Factors: factors the court considers when deciding amount, duration, and payment structure.
• Sec. 8.053 — Diligence: the rebuttable presumption and effort required to provide for minimum reasonable needs.
• Sec. 8.054 — Duration: the maximum time periods and shortest-reasonable-period rule.
• Sec. 8.055 — Amount: the monthly cap and gross-income rules for maintenance.
• Sec. 8.056 — Termination: events that can end the maintenance obligation.
• Sec. 8.057 — Modification: when a maintenance order may later be reduced or terminated.
• IRS Topic 452 — Tax Treatment: federal tax treatment of alimony and separate maintenance payments.