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Post-Divorce Alimony in Texas
from: Scott Morgan This article provides a brief overview on Texas law concerning
post-divorce alimony in Texas. Laws differ from state to state and
individual circumstances vary, so you should consult with a qualified
family law attorney in your area for specific advice on your particular
situation. Additionally, this article deals only with post-divorce
alimony. It does not address temporary alimony, which is provided for
under a different provision of the Texas Family Code.
Two Kinds of Alimony: Contractual and Court Ordered Maintenance
There are two kinds of post-divorce alimony in Texas: contractual
alimony and court ordered maintenance. The Texas Family Code also
provides authority for the court to order temporary alimony which occurs
while a divorce is pending. However, temporary alimony is outside the
scope of this article and will not be addressed.
Contractual Alimony
Contractual alimony is based on an agreement between the parties in
their divorce decree. For tax purposes, contractual alimony is normally
deemed income to the receiving party and is deductible from the income
of the paying party. Since contractual alimony must be based on an
agreement of the parties, there are no limits to the possible amount or
duration of the alimony.
Court Ordered Maintenance
Court ordered maintenance is provided for by Texas Family Code Chapter
Eight. Although actually awarded in only a small percentage of
Texas divorces, the court has the right to order one spouse to pay the
other post-divorce maintenance in either of two circumstances:
1. The payor spouse either received deferred adjudication or was
convicted of a crime constituting family violence within two years of
the filing of the divorce case, or
2. The parties have been married at least ten years and the receiving
spouse has some kind of financial limitation (disability, unable to work
because caring for the party's child, or lacks earning ability to meet
minimum reasonable needs).
The monthly amount of court ordered maintenance is capped at the lesser
of: a) $2,500 or b) 20% of the monthly payor's gross income.
The maximum duration of court ordered maintenance is three years. The
only exception is when maintenance is ordered as the result of a
disability, in which case the duration can potentially extend
indefinitely.
Considerations
Where there is a large disparity in incomes alimony can sometimes be
used as a useful settlement tool. Since alimony is generally taxable to
the receiving party and deductible to the paying party it can be often
structured so that it is advantageous to both parties.
For example, a party in a high tax bracket can agree to make monthly
alimony payments in exchange for a more favorable property division. If
the receiving party is in a lower tax bracket, the overall income tax
paid could be significantly lower than what it would be otherwise.
Another factor to consider is how rarely Texas trial courts order
maintenance, absent an agreement. The statute allows for maintenance
only when the specific statutory circumstances have been proven. There
are several appellate cases that have reversed trial court decisions
ordering maintenance when the requesting party did not provide
sufficient proof that the standard had been met.
In cases where there is a large amount of community property, one of the
most effective arguments in attempting to defeat a maintenance claim is
that the requesting party will have ample resources to provide for their
needs since the party will receive a significant amount of assets from
the division of property.
Another common argument used to defeat a maintenance claim is that,
during the pendency of the divorce, the requesting party has not made
significant attempts to either obtain employment or obtain training that
would allow the party to obtain employment.
As an example, lets take a divorce case where the wife is requesting
maintenance on the grounds that the marriage is longer than ten years
and that she lacks the earning ability to meet her minimum reasonable
needs.
If, the case has been pending for several months and at the time of
trial she has still made no effort to obtain employment or improve her
job skills, it will be a difficult claim to succeed upon. The court is
unlikely to find that she is "unable" to meet her reasonable minimum
needs and more likely to believe that she is unwilling to take the
necessary steps in order to provide for her own support.
Conclusion
Alimony in Texas, while rarely ordered, is an important and complicated
issue. It can be used as an effective settlement tool and can
potentially be a significant trial issue. For someone involved in a
Texas divorce case with a potential alimony issue, the issue should be
discussed in detail with an experienced divorce lawyer.
About the Author
Scott Morgan is a practicing Texas divorce attorney. For more information on texas divorce visit his website at http://www.texas-divorce-info.com . The website provides general information and resources on divorce, as well as specific information on Texas divorce law.
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