Originally published by The Law Office of Bryan Fagan, PLLC Blog.
In the event that you qualify for spousal maintenance in your Texas divorce, a judge will then have to decide how much money you should be paid on a monthly basis by your ex-spouse. Other relevant questions include for long you should be paid spousal maintenance and how the maintenance should be paid to you. Here are some of the factors that a judge would consider when making these determinations:
- Your financial resources will be considered, first and foremost. What abilities do you have to earn an income for yourself? What sort of property do you have available to you (community property or separate property) that could be sold in order to provide you with some money to live off of in the immediate time period after your divorce? If you were awarded debts in the divorce that would be looked at, as well. Basically, the judge will consider any relevant evidence in deciding whether or not there is a chance that you could pay your bills and meet your minimum reasonable needs on your own without support from your ex-spouse.
- Your education and job skills will be compared to those of your ex-spouse. For instance, if you have chosen to stay home for the past twenty five years to raise your children and take care of the home that will be a factor in deciding how much spousal maintenance to award you, and for long it should be awarded. Special consideration will be given in the event your spouse was able to go earn an advanced degree which was used to advance their career. Those achievements would not be possible, but for the sacrifice that you chose to make.
Once that comparison has been made, the judge would obtain evidence that shows how long it will take you to gain whatever training/education that you need to earn an income that will allow you to provide for yourself. That means turning the degree/certification into a job that produces income. Next, the availability of that sort of training/education would be examined as well as how likely it will be that you are able to complete your schooling in a given amount of time. The longer and more difficult it would be for you to be able to turn training into a job and into an income, the more likely you would be to be awarded more spousal maintenance for a longer period of time.
- The length of your marriage is another key factor. The Texas Family Code lays out for how long a judge can award spousal maintenance based on the length of your marriage. Marriages of 10-20 years, 20-30 years and 30 years plus can be awarded various lengths of spousal maintenance based on need. Judges will almost always attempt to be conservative in this area, understandably.
- The judge will also look to specific characteristics that you bring to the table as far as employability is concerned. Your age is the first factor I would think a judge would be interested in. Younger people have more time, a greater aptitude and more success (generally speaking) in learning new job skills and applying them in the marketplace. Older people generally speaking have a tougher time learning new jobs skills and employers don’t typically favor hiring older people versus younger people, all things being equal.
What has your employment history looked like? Again, if you have a twenty-five year gap in your resume because you have been at home taking care of the family while your husband went out to work and earn a huge salary, this would be seen as a negative factor for most employers. Also, if you have only worked part-time unskilled jobs over the past decade-plus then this would be considered when determining the likelihood that you can land a well-paying job in a relatively short amount of time.
Do you have any chance of landing a well-paying job at all? Or are your prospects limited to unskilled, part time jobs that can be readily had in your immediate area? There is nothing wrong with working at a place like this. However, if you are expected to take care of yourself and pay your own bills immediately after the divorce doing so on a retail worker’s paycheck may prove impossible.
Finally, your physical and mental capacity to work would be examined by the judge. Do you suffer from a physical or mental impairment that has made holding down a job to be nearly impossible? If this type of situation affects you, you may not be able to work even if you have an education or job skills to utilize in the marketplace.
- Your spouse’s income and resources would also be considered when determining the extent to which you could be awarded spousal maintenance. I had a case recently where the husband (who was nearly two decades older than our client, the wife) was asking for a significant amount of spousal maintenance. It was true that he lacked job skills, was older and received only military retirement as far as monthly income was concerned. While these factors would seem to point to a payday for the opposing party, the relevant factor at play was that our client became responsible for a lot of martial debt and had little money to spare. Ultimately, no spousal maintenance was awarded for the simple reason that our client lacked the resources to pay it.
- If your spouse wasted a ton of community income on himself, took out loans that were not paid back or somehow defrauded you then these are relevant factors to consider, as well. But for the fraud or the misleading statements or deeds, the community property could have been divided and utilized for income purposes.
- The older you get, health insurance becomes more and more important to you. Any insurance coverage that you have will be seen as a positive. Has your spouse accumulated a great deal of money in his 401(k)? This, too, can help tip the scales one direction or another for determining how much spousal maintenance to award to you.
- Some of you reading this blog post have a family history of owning property. If you owned that property before you got married then it is separate property and is not subject to division in the divorce. On the other hand, do you have any separate property debts? Did you sign a car loan with only your name on the loan? This could be taken the other way- showing that you are in a disadvantage when it comes to your financial future immediately after your divorce ends.
How long can spousal maintenance be awarded for and how much can you be paid?
Unless you find yourself suffering from a disability (mental or physical) that renders you unable to work, the longest award for spousal maintenance that can be made to you is for three years after the date that your final decree of divorce was signed. Whatever length of time is awarded to you, it will be the shortest possible time period possible in order to allow you to meet your minimum reasonable financial needs. Meeting those needs means finding a job and turning that job into a consistent source of income for you and your children.
Likewise, if you have to stay at home to care for a child who suffers from an incapacitating disability, then you would also be eligible to receive more money in spousal maintenance for a greater length of time. It would all depend on whether or not the physical or mental disability were expected to continue. Courts will sometimes order an indefinite length of spousal maintenance in situations like these.
What happens in situations like that, where spousal maintenance is awarded for an indefinite length of time, is that the court may order you and your spouse to return in a few years to determine whether or not it is necessary to extend the award of child support past where the current year. It would behoove you, therefore, if you are trying to get your award of spousal maintenance extended to show that you still have a need for the support. Medical opinions, even expert physician testimony may be helpful in this case.
How much spousal maintenance can be awarded to you in Texas?
Ultimately, this is the big question that needs to be answered. After all- if you are in between jobs, or are trying to get back into the labor force this is a question that needs to be answered. A family law court in Texas may not order spousal maintenance that requires your ex-spouse to pay you monthly maintenance that is more than the lesser of $2,500 per month or 20% of your ex-spouse’s average monthly gross income. So, you are looking at a cap of $2,500 per month.
How do your minimum basic needs figure into this equation?
The family court will set the amount of spousal maintenance at a number that provides for your minimum basic needs. This is a pretty open ended concept. If you are the spouse who may be in line to pay spousal maintenance after your divorce I’m sure you want to know the limits to your obligation.
First, if your spouse is able to work and earn some degree of an income this will be considered. After all- it wouldn’t make much sense to completely disregard their ability to earn an income- however small. Also, if your spouse received a substantial amount of the community estate in the divorce then this would be factored into the equation as well.
Your ex-spouse would need to lay out for the judge the specific amount of money that she would need to subsist for a certain period of time after the divorce. If the judge finds that number to be reasonable, any amounts of money that your ex-spouse can contribute to pay their own way after the divorce will be considered. After the arithmetic is complete, the judge will then look to how much you are capable of contributing. If you are capable of paying spousal maintenance your contribution would likely fill the gap between what your spouse can contribute and what their minimum reasonable needs are on a monthly basis.
What doesn’t count when determining a person’s gross monthly income?
Certain forms of income and sources of income do not count when a judge does the math on how much money your spouse earns for the purposes of assessing a monthly amount of spousal maintenance.
For example, if your spouse earns an income from the Department of Veteran’s Affairs for a disability related to their military service then that would not count towards their income. Likewise, social security benefits (retirement and disability) and worker’s compensation pay are not counted when determining their gross monthly income for the purpose of calculating spousal maintenance.
Have a spousal maintenance obligation that needs to be terminated or modified? Stay tuned tomorrow to find out more information
In tomorrow’s blog post we are going to put the shoe on the other foot, and write from the perspective of an ex-spouse who has an existing spousal maintenance obligation. Can that obligation be terminated or modified via a court order? Come back to our blog tomorrow to find out the answer and how you could go about getting this done.
In the meantime, if you have any questions about the material that we covered today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can discuss your specific issues and answer your questions directly. We take a great deal of pride in serving our community and would look forward to serving you and your family. Thank you for choosing to spend part of your day with us here and hope to see you again tomorrow.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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