WILL I GET SPOUSAL MAINTENANCE?
Many clients who have been married longer than 10 years commonly request post-divorce spousal maintenance. I am often asked the difficult question of 1) will I get spousal maintenance; 2) how much will I get; and 3) how long will it last. Although the Texas Family Code clearly shows that a court could award, the answer is usually what they may award. I constantly tell my clients that they are eligible to request spousal maintenance; however, they are not entitled to spousal maintenance.
The Texas Family Code Section 8.051 states the following:
Sec. 8.051. ELIGIBILITY FOR MAINTENANCE. In a suit for dissolution of a marriage 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 will lack 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, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred:
(A) within two 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;
(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.
Further, the Texas Family Code 8.052 states the following:
Sec. 8.052. FACTORS IN DETERMINING MAINTENANCE. A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including:
(1) each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;
(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
(3) the duration of the marriage;
(4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
(5) the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
(7) the contribution by one spouse to the education, training, or increased earning power of the other spouse;
(8) the property brought to the marriage by either spouse;
(9) the contribution of a spouse as homemaker;
(10) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
(11) any history or pattern of family violence, as defined by Section 71.004.
Lastly (for purposes of this post) the Texas Family Code Section 8.053 states the following:
Sec. 8.053. PRESUMPTION. (a) It is a rebuttable presumption that maintenance under Section 8.051(2)(B) is not warranted unless the spouse seeking maintenance has exercised 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.
APPLYING THE FAMILY CODE TO ACTUAL CASES
After reading the above statutes it is clear that those who have been married for longer than 10 years may request spousal maintenance from the courts in Texas. Section 8.052 sets out specific factors in determining if and how much the court will award spousal maintenance. Barring any outrageous fraudulent spending by one of the parties the courts usually focus on providing for a spouse’s minimum reasonable needs. In Travis County this can be accomplished easily by filling out a budget (required in Travis County) to show what the client’s expenditures are on a monthly basis. It is helpful to provide a budget to the judge in every county to show what your client’s minimum reasonable needs are. Without this evidence there is little chance that a judge can determine what (if any) should be awarded to the client.
In my experience the court’s also rely heavily on the length of the divorce proceedings (or separation) and whether or not the client requesting spousal maintenance has made a diligent effort to obtain employment to help earn sufficient income to meet their reasonable minimum needs and/or attempted to develop skills to provide for their reasonable needs during the separation (or pending divorce proceedings).
WILL I BE AWARDED SPOUSAL MAINTENANCE
This is an answer that no family law attorney can answer with certainty. Courts have wide discretion on awarding spousal maintenance and how much (to a degree. See Section 8.055) The more money that a client receives on a final hearing from the community estate the less of a chance they have to receive spousal maintenance as well. Spousal maintenance in the State of Texas is designed to help meet the reasonable minimum needs of the non-monied spouse. If the non-monied spouse is awarded $500,000.00 in a divorce the court is likely to deny their claim for spousal maintenance. Be prepared to face this fact in court and use it to your advantage in mediation to obtain some spousal even if your client is awarded a large amount of the community estate.
FINAL TIPS FOR MAXIMUM CHANCE OF SPOUSAL MAINTENANCE
- Plead properly for post-divorce maintenance;
- Make a good-faith effort to obtain employment and/or skills to further your ability to earn income to meet your minimum reasonable needs;
- MAKE A BUDGET!!! And provide as much backup documentation as possible (credit card statements, utility bills, car payments, gas bills, grocery receipts, etc…)