Alimony and Spousal Maintenance

Spousal Support Attorney in Texas

Did you know spouses who have served as stay-at-home parents are often entitled to monthly payments from the other spouse after a divorce?  Contact Attorney Shawn M. Rudisel, your Houston divorce lawyer, today for a complimentary consultation so you can better understand the divorce process in Texas and your rights.  Below is a summary of alimony and spousal maintenance.

What is the Difference between Alimony and Spousal Maintenance in Texas?

Alimony is a generic term often used in Texas divorces to define different types of post-divorce payments made by one spouse to another after a divorce. Spousal Maintenance is the only type of post-divorce payment a court can order in Texas.

Alimony and Spousal Maintenance Lawyer in Houston Texas

The Internal Revenue Service (IRS) defines contractual alimony. Parties can enter an agreement to pay alimony as defined by federal law, but a Texas court cannot order it. Alimony payments are considered income to the receiving party, and alimony may be deducted from the paying party’s income for tax purposes. The IRS has very specific guidelines that must be followed for payments to be considered alimony. The same is not always true of court-ordered Spousal Maintenance.

What is Spousal Maintenance?

Spousal Maintenance is the periodic payment of support by one spouse to the other spouse upon divorce. It is not taxable or considered income to the receiving party. Read our blog article “Texas Divorce and Spousal Maintenance” for a detailed discussion.

What are the eligibility requirements for awarded spouse maintenance in a Texas divorce?

A court can order a spouse to pay Spousal Maintenance only if:

  1. The spouse seeking maintenance will lack sufficient assets upon divorce (property and debt division) to support the spouse, and the spouse from whom maintenance is requested was convicted of or placed on probation during the marriage or within two years of filing for divorce for an offense involving family violence which was committed during the marriage against the other spouse or the other spouse’s child;
  2. The spouse seeking maintenance:
    • Is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
    • Has been married to the other spouse for 10 years or longer and cannot earn sufficient income to provide for the spouse’s minimum reasonable needs or
    • 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.

What disqualifies you for spousal support in Texas?

You may be disqualified from receiving spousal support (also known as spousal maintenance) in Texas if:

  1. Marital Duration: The marriage lasted less than 10 years, unless specific exceptions apply (such as family violence).
  2. Self-Sufficiency: You can meet your reasonable minimum needs without support.
  3. Disqualifying Behavior: You were convicted or received deferred adjudication for a family violence offense against your spouse or children during the divorce process or within two years before the filing.

How much spousal support am I entitled to in Texas?

The amount of spousal support depends on several factors, including:

  • Income of Both Spouses: The paying spouse’s income and the recipient’s financial needs.
  • Marriage Duration: Longer marriages may lead to higher support payments.
  • Child Custody: Care for a disabled child or inability to work due to caregiving responsibilities.
  • Spousal Misconduct: Infidelity or abuse can impact support awards.

Typically, spousal maintenance is capped at the lesser of 20% of the paying spouse’s gross monthly income or $5,000.

Can you sue for spousal support in Texas?

Yes, you can request spousal support during the divorce process if you meet the eligibility criteria. However, you cannot directly sue for spousal support outside of the divorce proceedings. A family court judge will evaluate your eligibility and determine the appropriate amount and duration of support.

What is the 10-year rule in divorce in Texas?

The 10-year rule in Texas allows spouses to qualify for spousal maintenance if the marriage lasted 10 or more years and the requesting spouse cannot earn sufficient income to meet their reasonable minimum needs. Exceptions apply, such as cases involving family violence or care for a disabled child, which can waive the 10-year requirement.

Can my ex-wife claim my 401(k) years after divorce?

Generally, no. Once a divorce is finalized, retirement accounts like 401(k)s are divided according to the divorce decree. If the decree awarded part of your 401(k) to your ex-wife, she may claim that share via a Qualified Domestic Relations Order (QDRO). If she did not claim it during the divorce, she usually cannot claim it years later unless the divorce settlement is modified or reopened due to exceptional circumstances.

What is a non-working spouse entitled to in a divorce in Texas?

A non-working spouse may be entitled to:

  • Community Property Division: An equitable share of community property, including assets like the marital home, retirement accounts, and businesses.
  • Spousal Maintenance: Support payments if eligible under Texas law, such as meeting the 10-year rule or caring for a disabled child.
  • Child Support: Payments for the care and welfare of minor children.
  • Health Insurance: Continuation of health insurance benefits via COBRA or private arrangements.

What Factors may the Court consider when Awarding Spousal Maintenance in Texas?

Once a court determines that a spouse is eligible to receive Spousal Maintenance, the court must consider the following factors in determining the amount and duration of support:

  • (1) each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on the dissolution of the marriage;
  • (2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
  • (3) the duration of the marriage;
  • (4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
  • (5) the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
  • (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
  • (7) the contribution by one spouse to the education, training, or increased earning power of the other spouse;
  • (8) the property brought to the marriage by either spouse;
  • (9) the contribution of a spouse as a homemaker
  • (10) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
  • (11) any history or pattern of family violence.

What Amount Can the Court Award?

A court can award the lesser of:
(1) $5,000; or
(2) 20 percent of the spouse’s average monthly gross income.

When do Spousal Support Payments Terminate?

Payments for Spousal Maintenance terminate upon the following:
(1) the court’s order is fulfilled,
(2) the spouse receiving payment dies or remarries.

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If you have questions about Spousal Support or Alimony, call The Rudisel Law Firm, P.C. We can help you get what you deserve.  We are your Houston Spousal Support Attorneys.