This article will outline the basic issues involved in alimony in a Texas divorce case. First, let’s get clear on the terminology. “Alimony” is the commonly used name for periodic payments of post-divorce support for a spouse, not to be confused with child support which is intended for support of the children of a marriage. Since as Texans we like to be unique, the statutory name given for alimony is “spousal maintenance.” So whether the term used is “spousal support,” “spousal maintenance” or just alimony, the meaning is generally the same: periodic post-divorce payments from one spouse to the other for the support of the recipient spouse.
Spousal Maintenance under the Statute
*NOTE: Chapter 8 of the Texas Family Code contains certain special provisions relating to 1) marriages where family violence has occurred and 2) cases where either the spouse seeking alimony or a child of the marriage is disabled. These issues are beyond the scope of this article and won’t be addressed here. If these topics are of interest to you, please leave a comment below and if there is enough interest I will write a future blog post on it.
For the typical divorce situation the spouse seeking alimony needs to be able to show the following:
- at least ten year marriage;
- they are unable to earn sufficient income to provide for their minimum reasonable needs; and
- they have diligently attempted and been unable to 1) obtain a suitable income and 2) get training that would allow them to obtain a suitable income, that would provide for their minimum reasonable needs.
A spouse who cannot show these three things is not qualified under the maintenance statute.
Maximum Amount under Statute
The maximum the court can order a spouse to pay as statutory spousal maintenance is the lesser of $5,000 or 20% of that spouse’s monthly gross income. For purposes of the statute “gross income” includes not only earned income but also passive earnings such as interest, dividends, royalties, rental income, etc. It is important to note that this amount is a ceiling, it is not the presumptive amount that the court will order. The spouse seeking maintenance has the burden to show the court the monthly amount required to meet their minimum reasonable needs.
Maximum Duration under Statute
The maximum length of statutory spousal maintenance is determined by the length of the marriage:
- Marriage lasted between 10 and 20 years – maximum duration: 5 years
- Marriage lasted between 20 and 30 years – maximum duration: 7 years
- Marriage more than 30 years – maximum duration: 10 years
Again, these are maximums and not presumptive durations. In fact, the statute specifically instructs the court to “limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse’s minimum reasonable needs.”
In negotiated divorce agreements where alimony is an issue it is common for the parties to include terms for contractual alimony instead of statutory maintenance. Since contractual alimony is agreed to by the parties rather than imposed by the court the statutory requirements, maximum amounts and maximum durations do not apply and can be freely negotiated between the parties. That is not to say that the statutory requirements are ignored in the negotiations, since ultimately the court will decide the issue based on the statutory parameters if a settlement is not accomplished.
Impact on Income Tax
Generally speaking, alimony payments are tax deductible to the paying spouse and are income to the receiving spouse. This makes the alimony issue one area in a negotiation that can be win-win. Effectively you can use the deductibility to create a transfer of income from a high tax bracket spouse to a low tax bracket spouse. Creative lawyers can often use an alimony provision to benefit both spouses, even in cases where the statutory spousal maintenance requirements are not met. Note that the deductibility of the alimony is determined by the federal tax code.
Alimony is an important and common issue in divorce cases involving long-term marriages, especially in those where one spouse has limited job skills or income earning ability. If this is an issue in your case you definitely want to consult with a family law attorney who is experienced in this area.