Lifetime Alimony . . . in Texas.

20 Jun, 2017

By Rob Musemeche

  No, that's not a misprint. And, while lifetime spousal support after divorce is certainly not the norm, Texas courts do have the power and authority to order alimony (we call it spousal maintenance) if specific criteria are met, and the duration of time for the award can absolutely be unlimited under certain conditions.

  In general, a spouse seeking alimony must be legally “eligible” to receive the maintenance support. When parties divorce in Texas, not only does the court divide community property, but it also has the discretion and power to order recurring payments from one spouse to the other in the event that the spouse seeking maintenance will lack sufficient property (including separate property) to provide for his/her minimum reasonable needs. Interestingly, there is no definition of “minimum reasonable needs” in the Texas Family Code. Accordingly, the courts are faced with a fact-specific analysis in each case. In this regard, courts generally consider evidence of the following expenses to be part of the spouse’s reasonable minimum needs: rent/mortgage, property taxes, automobile payments, utilities, gasoline, groceries, drugs and medicine, clothing, and child care costs.

  Further, assuming a spouse satisfies the first element of proving their eligibility for post divorce maintenance, the spouse seeking alimony must also pass the second prong of the eligibility test by establishing one of the following four pathways to receive the support.

  1. Evidence that the requesting spouse is the victim of family violence resulting in a conviction or deferred adjudication that occurred within 2 years before suit was filed or while pending;
  2. Evidence that a disability exists which prevents the requesting spouse to earn sufficient income due to an incapacitating physical or mental disability;
  3. A marriage that has lasted at least ten years, and the requesting spouse is unable to earn sufficient income to meet his/her minimum reasonable needs; or
  4. The requesting spouse is caring for a disabled child which causes the spouse to be unable to earn sufficient income.

  Once both prongs of the eligibility test have been met, the court must determine the duration of support. There is a presumption that courts will limit support payments to the shortest reasonable period of time necessary for the spouse seeking alimony to earn sufficient income to provide for their own minimum reasonable needs. Indeed, the legislature has established certain periods of time for the maximum duration of support as follows: if the basis for spousal maintenance is an act of family violence, or if the length of marriage is at least ten years, but less than 20 years, then the court may only allow support for a maximum period of five years. If the marriage was at least 20 years in length, but less than 30 years, then the duration of alimony can last no more than 7 years. If the marriage is 30 years or more at the time of divorce, then the alimony can be awarded for no more than 10 years.

    However, if the spousal maintenance award is based upon a spouse’s inability to earn sufficient income due to an incapacitating physical or mental disability -- there is no maximum length of time for the award of post divorce spousal maintenance.  Instead, the court maintains jurisdiction to order the support as long as the spouse meets the eligibility criteria.

  Finally, once it is determined that a spouse is eligible for maintenance, and the length of time has been set, the maximum amount of support to be awarded to the requesting spouse is based upon the following: either 20% of the obligor’s average monthly gross income; or $5,000 – whichever amount is less. There is no requirement that spousal maintenance completely eliminate a requesting spouse’s shortfall of their monthly needs.

  In conclusion, the amount of alimony to be awarded in a divorce is determined on a case by case basis, and the court is guided by a multitude of factors including the length of marriage and the actual needs of the requesting spouse. For these reasons, and because the court maintains jurisdiction to modify or terminate the alimony award even after the divorce is final, it is important to discuss your individual situation with a family law attorney familiar with these subjects.