Will I Receive Post-Divorce Maintenance or Alimony?
By Alyson Falk
One of the most burning questions clients have when they are going through divorce is whether they will receive or pay post-divorce maintenance (“alimony”). I have already shared the importance of understanding your post-divorce budget while you are going through divorce here, so it is equally important for you to understand what post-divorce maintenance is and whether it will be a factor in your post-divorce landscape. As always, to understand how the information provided in this blog may be relevant to your own divorce case, schedule a consultation with one of our experienced family law attorneys.
Texas is a community property state, which as a principle means spouses should only be entitled to a division of the property has been earned and accumulated during the marriage, not a portion of one spouse’s property or earnings after the divorce is rendered.
If the spouse requesting maintenance is being awarded substantial property in the divorce proceeding or has access to substantial separate property, the spouse will almost never qualify to receive maintenance regardless of how long he/she has been married.
In Texas, the following are circumstances when a Court may order one spouse to pay post-divorce maintenance to the other spouse—
- If the spouse being asked to pay maintenance has been convicted of family violence against the other spouse or their child.
- If the spouse asking to receive maintenance cannot earn sufficient income to provide for his/her minimum reasonable needs due to his/her own incapacitating physical or mental disability.
- If the spouse asking to receive maintenance has been married to the other party for 10 years or longer and lacks the ability to earn sufficient income to provide for his/her minimum reasonable needs.
- If the spouse asking to receive maintenance 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 his/her minimum reasonable needs.
If you are asking to receive maintenance, you must be able to demonstrate that you have diligently tried to earn income to provide for your own minimum reasonable needs, but you have been unable to.
If you are asking to receive post-divorce maintenance but you have not exercised diligence in trying to earn sufficient income, you may still be able to receive post-divorce maintenance if, during your separation and divorce, you have exercised diligence in developing the necessary skills to provide for your minimum reasonable needs (i.e., further education, a training program, etc.).
If you have been out of the work force for so long that you need a training course or degree in order to find gainful employment, you should do the research during your divorce to find the program you want to enroll in and, if possible, go ahead and begin your program or further education.
The second big question—how much post-divorce maintenance will I pay or receive?
Under Texas law, the maximum amount of post-divorce maintenance a divorcing spouse may be ordered to pay is 20% of that spouse’s gross monthly income, or $5,000.00 per month, whichever is less.
How long you have been married dictates how long a Texas court may order post-divorce maintenance to be paid. If you have been married between 10 and 20 years, post-divorce maintenance may be payable in your case for up to five years. If you have been married between 20 and 30 years, post-divorce may be payable in your case for up to 7 years. If you have been married more than 30 years, post-divorce maintenance may be payable in your case for up to 10 years.
Is anything guaranteed?
Maintenance is never guaranteed! Post-divorce maintenance is discretionary—the Court is never required to order it—and the laws make it clear that it should only be ordered when it is absolutely necessary and when the spouse being asked to pay the post-divorce maintenance can actually afford to do so.
The Family Code specifically commands the Court to limit each post-divorce maintenance order to the shortest reasonable period that allows the spouse requesting maintenance to earn sufficient income to provide for his/her minimum reasonable needs (i.e., it will rarely be considered “reasonable” that it may actually take 5-7 years to be able to provide for one’s minimum reasonable needs).
And, post-divorce maintenance orders can be modified. If either party’s circumstances change after the divorce, the Court can modify the maintenance amount and duration. This most often becomes an issue when the spouse receiving maintenance begins earning more income while maintenance is still being paid, or begins cohabitating with someone else either romantically or who is contributing to the payment of the spouse’s monthly expenses (i.e., a girlfriend/boyfriend or platonic roommate). If you are the spouse paying post-divorce maintenance and you lose your job or your income decreases, the amount you pay may be reduced.
If you question whether your post-divorce maintenance order ought to be modified, consult with an experienced family law attorney right away.
In many cases, a spouse’s need for ongoing additional financial support following divorce can be negotiated as part of a complete financial settlement. Post-divorce maintenance or alimony can be agreed between the parties and sometimes is a smart solution to the financial interests of both parties. Just because it is difficult under Texas law for a Court to order post-divorce maintenance or alimony does not mean it is off the table for negotiation. Schedule a consultation with one of our experienced family law attorneys to understand more about the division of your marital estate and how post-divorce maintenance may be considered