Spousal Maintenance Texas Family Code Section 8

Question 1

Spousal Maintance A.K.A Alimony

Answer 1

• Did not exist in Texas prior to 1995.
• Originally intended to protect “homemaker” spouses.
• Expanded now generally to protect disabled spouses, spouses who care for disabled children, and spouses affected by family violence.

Question 2

Eligibility

Answer 2

1. Must prove you are a spouse;
2. Prove that you lack sufficient property to provide for your minimum reasonable needs; and
3. You meet one of the four statutory bases for spousal maintenance
   a) Ten-year marriage;
   b) Family violence;
   c) Disabled; or
   d) Cares for disabled child.

Question 3

Spouse

Answer 3

• Spouse or
• Putative spouse
• Meretricious relationship is NOT covered.

Question 4

Minimum Reasonable Needs (Sec. 2.2)

Answer 4

• Fact-specific inquiry decided on a case-by-case basis.
• Evidence that you can (or cannot) support yourself:
  (Ex. Pay mortgage or rent; Pay property taxes; pay utility bills; car payments; insurances (home, car, health); gas, groceries, credit cards, medications; clothing; child-care; transportation costs).
• Insufficient property:
  -Court looks to spouse’s monthly income, value of any income-producing property, value of spouse’s separate property, and value of court’s division of marital estate.

Question 5

Statutory Bases for Maintenance: 10 Year Marriage + Inability to Support Self

Answer 5

• 10 year requires proof that:
  1. Married for 10 years or more;
  2. Lacks the ability to earn sufficient income; and
  3. Made diligent efforts to either earn sufficient income or develop necessary skills to provide for minimum reasonable needs. (Rebuttable presumption maintenance not warranted unless this factor complied with during period of separation and during the time the suit was pending, TFC §8.053)

Question 6

Statutory Bases for Maintenance: Family Violence + Inability to Support Self

Answer 6

• Requires:
  1. Spouse cannot provide for minimum reasonable needs;
  2. Person from whom maintenance is requested was convicted of or received deferred adjudication for criminal offense constituting an act of family violence;
  3. Act was committed during the marriage against the other spouse or other spouse’s child; and
  4. Offense occurred within 2 years before date on which dissolution was filed; or while the suit is pending.

Question 7

Statutory Bases for Maintenance: Petitioner’s Disability + Inability to Support Self

Answer 7

• Must prove:
  1. Suffers from an incapacitating physical or mental disability ;(Can be inferred from circumstantial evidence or lay-witness testimony. Expert witness not necessary)
  2. Disability is incapacitating to the point it prevents spouse from earning sufficient income to meet minimum reasonable needs.

If on social security but can still work, they are ineligible for spousal maintance.

Question 8

Statutory Bases for Maintenance Disabled Child + Prevented From Earning Sufficient Income

Answer 8

• Spouse cannot provide for her minimum reasonable needs because she is custodian of a disabled child.
• Elements:
  1. Child must be of the marriage (presumed or adopted);
  2. Child can be any age, including an adult;
  3. Child must be disabled and require substantial care (physical or mental disability that requires substantial care and personal supervision); and
  4. Substantial care prevents spouse from earning sufficient income.

Question 9

Factor Court Can Consider When Awarding Maintenance TCF §8.052

Answer 9

1. Ability to provide for reasonable needs, independently;
2. Education and employment skills of each spouse, time necessary to acquire sufficient education;
3. Duration of marriage;
4. Age, employment history, earning ability and physical and emotional conditions of spouse seeking maintenance;
5. Ability to provide for minimum needs while providing periodic child support payments or maintenance;
6. Acts by either spouse resulting in excessive or abnormal expenditures or destruction of property;

for employment history, courts can look at if individual had primarily been a homemaker.

Question 10

Factors Continued

Answer 10

7. Contribution by one spouse to education, training, or increased earning power of the other spouse;
8. Property brought into marriage by either spouse;
9. Contribution of a spouse as homemaker;
10. Marital misconduct, including adultery and cruel treatment by other spouse during the marriage; and
11. Any history or pattern of family violence

Question 11

Duration of Maintenance

Answer 11

• No more than 5 years, assuming
  -Spouses were married less than 10 years AND award is due to family violence; or
  -Spouses were married for at least 10 years but not more than 20 years
• No more than 7 years, assuming
  -Spouses were married for at least 20 years but not more than 30 years
• No more than 10 years, assuming
  -Spouses were married for 30 years or more

Question 12

Limit Duration

Answer 12

• Court must limit the duration of maintenance to shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for minimum reasonable needs, unless the ability of spouse is substantially or totally diminished by:
  1. Physical or mental disability of the spouse seeking maintenance;
  2. Duties as the custodian of an infant or young child of the marriage; or
  3. Another compelling impediment to earning sufficient income to provide for minimum reasonable needs.
  4. If granted because of spouse’s disability or caring for disabled child, support can continue as long as the disability remains or in case of the child, the child’s disability remains.

Question 13

Amount of Maintenance

Answer 13

• No more than the LESSER of:
• $5,000 monthly, or
• 20% of spouse’s average monthly gross income.

Question 14

Termination of Maintenance

Answer 14

• Terminates on death of either party or on the remarriage of the obligee
• After hearing determining that obligee cohabits with another person with whom obligee has a dating or romantic relationship in a permanent place of abode on a continuing basis.
• Arrearages survive termination.