Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Here’s a question that was posed to me recently in a consultation
with a potential client of the
Law Office of Bryan Fagan, PLLC: can
spousal maintenance be awarded to a person after their
divorce has already been completed? This person that met with me had suffered
a stroke two months after her divorce had completed and now was unable
to work or provide for her basic needs. She came in to see whether or
not she could file a
modification of her
divorce decree to take her new disability into account. After all- the divorce had not
been over but for a couple months. Was this possible, she wondered?
Unfortunately for this person the loss of a job or the development of a
disability like she had to go through are not reasons enough for a spousal
maintenance order to be inserted into the other obligations contained
in final decree of divorce. In fact, there is no way that anyone (for
any reason) may re-open the divorce in order to get a spousal maintenance
provision included in the divorce decree. This is intended to protect
spouses and not attempt to re-litigate a divorce after its conclusion-
even if the conclusion was only a few months ago.
How to enforce the terms of a spousal maintenance order
An enforcement case is a quasi criminal case that bears with them the potential
for jail time as a consequence of failing to abide by the terms of a family
law order. In the case of a spousal maintenance award, a court may enforce
the order for spousal maintenance whether it was rendered by a judge or
agreed to by the parties in mediation.
A question remains whether alimony payments and an order mandating payment
of alimony from one spouse to another is enforceable by
contempt (jail time). Alimony is a contractual debt that is paid from one spouse
to another as opposed to spousal maintenance which is more akin to child
support as a form of income. A person who owes another person a debt cannot
be jailed for failing to make timely payments and as such most courts
I imagine would not allow you to utilize contempt of court as a mechanism
to spur payment.
Please note that there are prior Texas cases where your ability to enforce
a maintenance order by contempt is not absolute. The overarching (general)
practice of courts in Texas is to allow for contempt as a punishment for
the failure to abide by a court’s order in regard to spousal maintenance.
To ensure that you are in a position to do so I would recommend that your
order be drafted very meticulously. This means the language utilized to
cover spousal maintenance should be specific with clear terminology that
can tell the judge in plain language what the expectations are for the
party who is obligated to pay the maintenance.
Potential defenses in an enforcement case involving the failure to pay
spousal maintenance
If you are in a position where you are needing to defend yourself against
a spousal maintenance related enforcement case you do some defenses that
you can present to a court. For instance, if you did not have the ability
to pay the spousal maintenance as ordered then you should offer this defense
to the court. Did you lose a job and been unable to find replacement work?
Did you yourself become disabled (even temporarily) and therefore find
yourself unable to work? If so then you should be sure to specify this
for the court.
Short of having cash on hand, a court would look to the resources that
you have available to you in order to pay your spousal maintenance obligation.
If you lack property that could be sold to come up with the funds to pay
the spousal maintenance as ordered you can present this type of defense
in an enforcement case.
The final two defenses that are commonly utilized in a spousal maintenance
enforcement case are either being unable to locate a person from whom
you can borrow money to pay spousal maintenance or you were unable to
borrow money form a source that you had previously identified. If a court
is willing to say that you should borrow money to pay the maintenance
you can see that you must exhaust every resource available- including
taking out loans and/or selling property- in order to meet the obligation.
Can your wages be withheld in order to your spousal maintenance obligation?
Much like when it comes to child support a
wage withholding order can be filed with the court and sent to your employer in order to take
out a specific amount from your paycheck on a regular basis in order to
pay spousal maintenance. This is especially the case if you have fallen
behind in your payments before and it is shown to a court the filing of
a wage withholding order is necessary in order for you to meet your obligation.
Temporary Spousal Support while your divorce is ongoing
You are able to ask a court to have
spousal support be paid to you on a temporary basis during the pendency of your divorce.
A court can also order this on its own even if you have not done so yourself.
This is a lifeline of sorts that will protect you and your ability to
live a basic lifestyle while your divorce is in progress. Keep in mind
that this is no guarantee of future payments after the divorce. We see
this occur with some frequency in divorces where one spouse controls the
finances and earns the community income while the other does not earn
an income of any sort and has no control over the family finances.
If you believe that you will be in need of temporary spousal support then
you should request it in your petition for divorce or in the answer that
is filed in response to the petition for divorce. The key here is that
a detailed and accurate financial statement will need to be presented
to the judge prior to any hearing on this subject in order so that you
can capture the present state of your personal finances.
A court will determine your specific need for temporary support and will
make an award as such. Both your needs and the ability of your spouse
to pay the support will be considered. Spousal support is not intended
to help you live the same type of lifestyle as your spouse during the
divorce, but rather to help you subsist until a later date when you become
able to work and earn a sufficient income to provide for yourself. Finding
a job, even if you just won a temporary spousal support award, is a great idea.
Questions on Spousal Maintenance or any subject in family law? Contact
the Law Office of Bryan Fagan, PLLC
The attorneys with the
Law Office of Bryan Fagan, PLLC appreciate you spending these past few days with us reading about the
important subject of family law. We hope that the information we presented
will assist you in your particular legal situation.
If you have questions about anything you’ve read please
contact us today. We offer free of charge consultations six days a week with one
of our licensed family law attorneys.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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