In any suit for divorce in Texas or in a proceeding for maintenance in a Court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal jurisdiction over an absent spouse, the Court may order maintenance for either spouse only if the spouse seeking maintenance lacks sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs. In many of our cases, clients will call and refer to the Texas spousal maintenance laws as “alimony”. However, the terminology that Courts use to award support to either spouse is “spousal maintenance”.
Texas Family Code in Section 8.053 does provide for a spouse to rebut the presumption that a spouse is entitled to spousal maintenance. It is a rebuttable presumption that maintenance under Section 8/051(2)(B) is not warranted unless the spouse seeking the maintenance has exercised due diligence in 1) earning sufficient income to provide for the spouse’s minimum reasonable needs, or 2) developing the necessary skills to provide for the spouse’s minimum reasonable needs during a period of separation and during the time the suit for dissolution of the marriage is pending.
In general, there is a presumption in Texas under the Texas Family Code that a Court should NOT grant spousal maintenance unless the spouse seeking spousal maintenance has exercised due diligence in seeking employment or in developing the necessary skills required for self-support during the separation and the time the suit for divorce is pending. However, if the spouse is unable to seek employment because of an incapacitating mental or physical condition or disability, this presumption does not apply. Usually the Courts will make the determination of whether or not a spouse has to overcome the rebuttable presumption against spousal maintenance on a case by case basis.
A spouse may seek maintenance from the spouse from whom maintenance is requested if the spouse was convicted or of received deferred adjudication for a criminal offense that also constituted an act of family violence, as defined by Section 71.004, committed during the marriage against the other spouse or the other spouse’s children and the offense occurred within 2 years before the date on which a suit for divorce was filed, or while the suit for divorce is pending. A spouse seeking spousal maintenance may also seek maintenance if the spouse is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability. Or, if the spouse seeking maintenance 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, if the spouse seeking 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 the spouse’s minimum reasonable needs.
In summary, there are 3 main ways for a spouse to be eligible to receive court-ordered spousal maintenance, but under all of them, the spouse seeking spousal maintenance must prove that he or she will lack sufficient property to meet his or her minimum needs. The first way is to prove that the providing spouse has committed a criminal offense that constitutes an act of family violence in the 2 years preceding the filing of the petition for divorce or while the case is pending. The second way is to prove that the spouse who will receive spousal maintenance is the custodial parent of a child of the marriage who requires substantial care and personal supervision because the child has a physical or mental disability such that the child’s disability prevents the custodial parent from being employed. The third way is to prove that the parties have been married 10 years or longer and that the spouse seeking spousal maintenance lacks the ability to provide for that spouse’s basic needs.
It is not easy to get spousal maintenance in Texas. It is always advised to speak with an experience attorney prior to filing a petition for divorce so that the spouse seeking spousal maintenance is prepared to answer questions at their first court appearance.