Do I qualify for Alimony?

This is a question that is asked by many of our clients when they first make contact with The Barbosa Law Firm, P. C..   I find that most parties that are asking about spousal maintenance or spousal alimony do not understand the basic concept of the issue as it relates to their individual situation.

What is maintenance?

“Maintenance” or as is commonly known in the United States as “alimony” means an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse. Maintenance is usually ordered by the Courts with a “writ of withholding” meaning the document issued by the clerk of the court and delivered to an employer, directing that earnings be withheld for payment of spousal maintenance as provided by the Texas Family Code.

Am I eligible for maintenance?

So one of the initial questions posed to our attorneys is “am I eligible to get maintenance from my spouse”? The answer is always “well it depends”.   In a suit for divorce or in a proceeding for maintenance in a court with personal jurisdiction over both parties, the court may order maintenance for either spouse only if the spouse seeking the maintenance is lacking sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and (1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by section 71.004 of the Texas Family Code, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred (A) within 2 years before the date on which a suit for dissolution of the marriage is filed; or (B) while the suit is pending; or (2) the spouse seeking maintenance (A) is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability; and (B) has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or (C) 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 is reasonable minimum needs?

The term “minimum needs” is not defined in the Texas Family Code.   Therefore, Texas courts have ruled that determining what the “minimum reasonable needs” are for a particular individual is a fact specific determination which must be made by the Court on a case-by-case basis. A list of expenses can be helpful; however, such a list is not the only evidence upon which a court can determine a person’s minimum reasonable needs.

Other courts in Texas in considering whether a spouse was eligible for spousal maintenance have upheld an award for spousal maintenance in situations where the spouse receiving the maintenance obtained substantial property in the divorce proceeding when those capital assets provided insufficient support.

Several factors must be discussed and evaluated with a client before a decision is made to pursue spousal maintenance in a divorce proceeding.   It is the best practice to determine from the outset of a divorce case whether or not the client will qualify for a spousal maintenance award.