Jordan Watson Pfister Family Law, PLLC
FALL 2021 ISSUE FAMILY LAW
When someone is considering divorce, there are likely many questions floating about in their head regarding all the unknowns. One of the major concerns for many is the financial responsibility of being out on their own again. For some, especially those who have not worked while married or cannot work, this is a more daunting idea than for others. How will they provide for themselves? What will they do if they can’t work? How will they meet their needs without their former partner? Luckily, if someone is truly qualified to receive spousal maintenance, the law provides for an answer to all these questions. Chapter 8 of the Texas Family Code contains the relevant law on spousal maintenance in Texas.
How does Texas label property? Before getting into spousal maintenance, it is important to briefly discuss how Texas labels the property of spouses. Texas is a community property state.¹ Community property is any property that is acquired at any time throughout the marriage.² However, there are a few exceptions to the rule. Separate property is any property that a spouse (1) owned before marriage, (2) received as a gift, (3) inherited, or (4) was awarded as a personal injury award (other than for loss of earning ability).³ It is the court’s job to make a “just and right” division of property when the divorce is finalized.⁴ At times, part of that just and right division includes the consideration of spousal maintenance. The Court will only divide community property, so it is important to know what is and isn’t community property that will be considered in determining spousal maintenance.
So, who can receive spousal maintenance? When spousal maintenance is necessary, Texas Family Code § 8.051 describes who qualifies for it.⁵ There are two hurdles a party must cross before he or she is eligible.⁶ The first hurdle is whether the spouse seeking the award of maintenance “will lack sufficient property” upon divorce to “provide for the spouse’s minimum reasonable needs.”⁷ What a court looks at to see whether the party will have sufficient property includes separate property of the spouse seeking support.⁸ If the spouse seeing maintenance will lack sufficient assets to meet his or her minimum reasonable needs, the party will then have to prove that he or she also meets one of the additional criteria under Texas Family Code § 8.051(1)-(2).⁹ The spouse seeking maintenance must prove that:
Within the last two years of the marriage, the providing spouse committed family violence against the spouse seeking maintenance or that spouse’s child; or
The spouse seeking maintenance has an incapacitating disability that causes that spouse to not be able to provide for his or her minimum reasonable needs; or
The couple has been married for ten or more years and the spouse seeking maintenance lacks the ability to provide for his or her minimum reasonable needs; or
The couple has a child who has a disability that requires substantial care and supervision rendering the spouse seeking maintenance unable to provide for his or her minimum reasonable needs.¹⁰
If the seeking spouse can prove one of those criteria and that he or she will lack property to meet his or her minimum reasonable needs, the spouse can go forward with a claim for spousal maintenance.
But what are reasonable minimum needs? Reasonable minimum needs are decided on a case-by-case basis by the court.¹¹ Maintaining the lifestyle one is accustomed to is not what reasonable minimum needs refers to means. Minimum reasonable needs are generally the things a person needs to survive, like shelter, food, medical care, transportation, utilities, etc.¹²
What else does the court look for? If a divorce court determines that a spouse is eligible for spousal maintenance, then it will determine the amount and duration of the award. The court can look at many factors in making this determination, such as:
The ability of each spouse to provide for themselves;
The education and employment skills of each spouse;
The length of the marriage;
The physical and mental condition of the seeking spouse;
The spending habits of the spouses during the marriage;
The contribution to the marital estate by the spouses;
The contribution to the marriage as a homemaker;
Marital misconduct (think adultery); and
Any history of family violence.¹³
Additionally, the spouse seeking maintenance must show diligence on his or her part in providing for minimum reasonable needs.¹⁴ The seeking spouse must show he or she has attempted to earn income and has worked on developing skills to provide such income from the time the divorce was filed until the time the divorce was finalized.¹⁵ Without this, the court may determine that the spouse, though otherwise qualified, should not be awarded maintenance.¹⁶
How much can someone get in maintenance? The Texas Family Code specifies the amount a court may award in spousal maintenance. This award cannot require a providing spouse to pay more than $5,000 per month or more than twenty percent of the providing spouse’s average monthly gross income.¹⁷
How long can someone get maintenance? If the parties were married less than ten years and family violence occurred, the court cannot award more than five years of spousal maintenance.¹⁸ The court can also only award five years of maintenance if the spouses were married between ten and twenty years, regardless of family violence.¹⁹ The court can award seven years of maintenance if the parties were married for twenty to thirty years and the court can award ten years of maintenance if the parties were married more than thirty years.²⁰ The court must limit the duration of maintenance payments to the shortest reasonable period for the seeking spouse to become financially able to provide for himself or herself.²¹ Though there are limits as to the duration for most cases, there are some instances in which the court may allow for permanent spousal maintenance.²² If the seeking spouse has an incapacitating disability or is caring for the couple’s child with an incapacitating disability and, therefore, cannot work, the court can order maintenance for as long as the disability exists.²³ Additionally, the court can order spousal maintenance for only the time the divorce was pending.
Real Life Examples While the rules may seem clear, some examples may help put perspective on some of these maintenance issues. Here are a few examples of people who qualified and did not qualify for spousal maintenance in Texas:
A wife was considered eligible for spousal maintenance when she proved she was blind and diabetic and therefore could not provide for her minimum reasonable needs.²⁴
Though a couple was married for more than ten years and the wife proved she was making very little income, the husband proved she was underemployed. The wife had the skills and training to obtain better employment but chose not to and was not awarded spousal maintenance.²⁵
Even though a wife had greater education than her husband, the court awarded the wife spousal maintenance based on a finding that the husband had committed family violence.²⁶
A wife was denied spousal maintenance, even though she had a disability, because she was awarded a large enough portion of the marital property to provide for her minimum reasonable needs.²⁷
If you think you may qualify for maintenance, it is best to consult with a family law attorney. Your attorney will be able to guide you in the proper direction and help you gather the evidence needed to overcome any hurdles. Remember to use what you have learned to explain your situation to your attorney so that they have all the facts to help you get the best outcome in court.
Sources ¹ Tex. Fam. Code § 3.003. ² Tex. Fam. Code § 3.002. ³ Tex. Fam. Code § 3.001. ⁴ Tex. Fam. Code § 7.001. ⁵ Tex. Fam. Code § 8.051. ⁶ Id. ⁷ Id. ⁸ Id. ⁹ Id. ¹⁰ Id. ¹¹ Diaz v. Diaz, 350 S.W. 3d 251, 254 (Tex. App.–San Antonio 2011, pet. denied); Matter of Marriage of Hale, 975 S.W.2d 694, 698 (Tex. App.—Texarkana 1998, no pet.); Lopez v. Lopez, 55 S.W.3d 194, 198 (Tex. App.—Corpus Christi 2001, no pet.). ¹² Chafino v. Chafino, 228 S.W.3d 467, 475 (Tex. App.—El Paso 2007, no pet.); see also Amos v. Amos, 79 S.W.3d 747, 750 (Tex. App.—Corpus Christi 2002, no pet.); Stafford v. Stafford, 2005 WL 3201894 (Tex. App.—Tyler 2005, no pet.) (mem. op.). ¹³ Tex. Fam. Code § 8.052. ¹⁴ Tex. Fam. Code § 8.053. ¹⁵ Id. ¹⁶ Id. ¹⁷ Tex. Fam. Code § 8.055. ¹⁸ Tex. Fam. Code § 8.054. ¹⁹ Id. ²⁰ Id. ²¹ Tex. Fam. Code § 8.085. ²² Tex. Fam. Code § 8.054. ²³ Id. ²⁴ Ayala v. Ayala, 387 S.W.3d 721 (Tex. App.–Houston [1st District] 2011, no pet.). ²⁵ Greco v. Greco, No. 04-07-00748-CV, 2008 WL 4056328 (Tex. App.–San Antonio Aug. 29, 2008, no pet.) (mem. op.). ²⁶ Guillot v. Guillot, No. 01-06-01039-CV, 2008 WL 2548547 (Tex. App.–Houston [1st District] June 26, 2008, no pet.) (mem. op.). ²⁷ Kennedy v. Kennedy, 125 S.W. 3d 14, 21 (Tex. App.–Austin 2002, pet. denied), cert. denied. 540 U.S. 1178 (2004).