The Court can order one spouse to pay the other “temporary alimony” for support during the pendency of the litigation. This is commonly referred to as “Spousal Support” or “Temporary Spousal Maintenance”. Temporary support is usually awarded to one party due to that party’s inability to meet their minimum reasonable needs during the divorce process and the other party has the capacity to financially contribute to the recipient’s support.
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 Chapter Eight of the Texas Family law Code. 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:
- 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
- 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 to the lesser of:
- $5,000, or
- 20% of the monthly payor’s gross income.
The maximum duration of court ordered maintenance varies based on the length of the marriage, and ranging from between five years to ten years in length, although the court typically orders less than the maximum period if the recipient has the potential to support his or herself. The exception to the cap on duration is when maintenance is ordered as the result of a disability, in which case the duration can potentially extend indefinitely. Another element adding to the qualifications of a spouse to receive court-ordered spousal maintenance is if family violence has occurred within two years prior to the petition for divorce being filed.
The Difference Between Spousal Maintenance and Alimony
Texas does not have alimony, which is what many people think of as spousal maintenance. In Texas, post-divorce support is legally termed “spousal support” or “spousal maintenance.” The concept of spousal maintenance or support is that a husband or wife may be entitled to temporary, rehabilitative, or permanent spousal support in cases where the recipient is disabled and cannot support him or herself. Alimony is a term used in common law states that do not have community property, where a spouse can be ordered to make post-divorce payments to the other spouse indefinitely or until that person remarries. As discussed above, the main intention of Texas post-divorce maintenance is rehabilitative, it is supposed to act as a bridge to allow the recipient to become self-sufficient by giving that person time to become employed or become employable; the division of the community estate, not the payment of post-divorce maintenance, is how Texas family courts divide the benefits of the marriage.