SPEAKER_00: 0:02

Welcome back to the Texas Family Lawyer Podcast. I'm Alex Hunt of Hunt Law Firm, a family law firm with offices throughout the greater Houston area. And today I am thrilled to be joined by attorney Hannah Sumput. Welcome.

SPEAKER_01: 0:15

Thank you, Alex.

SPEAKER_00: 0:16

Today we're going to take a deep dive into a very important topic: spousal maintenance, or as some folks might know it, alimony. We're going to talk about how to qualify for alimony in Texas and why it's a little bit more difficult than some other states, how to lower your alimony payments if you are giving alimony, and then what the difference is between spousal maintenance and contractual alimony. So let's jump in.

SPEAKER_01: 0:41

Awesome.

SPEAKER_00: 0:43

All right. Our first question, Hannah, is who qualifies for spousal maintenance or alimony in a Texas divorce? And what a lot of folks might not realize, especially if they're coming from another state, is that there are some pretty strict eligibility requirements and it could be pretty difficult to qualify for. Walk us through the eligibility requirements for spousal maintenance in Texas.

SPEAKER_01: 1:06

Yeah. So in Texas, the first thing that you need to show the court is that you are unable to meet your basic minimum needs. When we have people come in and do a consult or during their case, they often think of the basic minimum needs as their current standard of living. But it's important to remember that when a court says the basic minimum needs, it really means can you afford a roof over your head? Do you have clothes on your back? And do you have food? So for a lot of people, it's a lot lower than what they're accustomed to living. So that's the first thing you need to prove. And then in addition to that, you need to prove at least one of the four following. One is that you have a physical or mental disability that makes it so that you are incapable of working, or that you are the primary caregiver of a child who has a physical or mental disability so that you cannot work. Another option is if there has been family violence, but it's important to note that if you are trying to prove that, you need to also prove that the person from whom you're asking spousal maintenance has been convicted of family violence or received uh deferred adjudication within the past two years prior to filing for divorce or during the divorce. And then the fourth option, of course, which I think is the most common, is if you've been married for at least 10 years.

SPEAKER_00: 2:19

So if you don't have a child with a disability or you don't have a disability, there hasn't been family violence, your only recourse, and that's most cases. Yes. Um, your only re recourse is going to be uh being married for over 10 years. So if you're married for nine years and six months and you don't have any of those other criteria, there's literally no way that a Texas court can issue you alimony, correct?

SPEAKER_01: 2:45

Correct. It Texas is a very hard state to get spousal maintenance in. And I think a lot of people are surprised about that when they come in to get a divorce.

SPEAKER_00: 2:53

And uh you mentioned the minimum reasonable needs, and I always say Texas puts the minimum and minimum reasonable needs because it really means are you able to put food in your belly and a roof over your head? Um, the other thing that a lot of folks might not realize is that the court will take other things into consideration, even if you don't have enough income to account for your minimum reasonable needs, if you have separate property after a divorce, they'll take that into account as well. Or if you are getting um a large sum of money from the community estate, say you've got a$2 million estate and you're getting a million dollars, it's gonna be a hard thing to prove to the court that you don't have enough money to meet your minimum reasonable needs if you've got, even if it includes retirement, which is supposed to be for the future, it's gonna be difficult to prove that you can't put a roof over your head and put and put food in your belly.

SPEAKER_01: 3:44

That's true. And I think it's important to note that the how Texas courts view spousal maintenance, it's not a long-term solution. How they view it is this is the amount of money that you need in order to go back to school, maybe to get that education, to get the skills, or to apply to jobs to get a job to start to support yourself. Courts don't really like one spouse supporting another spouse indefinitely after a divorce.

SPEAKER_00: 4:06

Yeah. I mean, we see stories online, particularly celebrities that are out in California, and um, you know, Kevin Costner is paying hundreds of thousands of dollars a month to his uh wife. That's really not the case in Texas. It's a completely different set of laws, and it's meant to be, as you said, temporary. Yes. So so then what are uh how does the court decide the amount and the duration of the child support? Assuming that you are eligible, you've been married more than 10 years, or there's family violence or a disability, how does the court decide how much and for how long?

SPEAKER_01: 4:42

So courts have a lot of discretion when deciding this. Um, each case is different, so it's really fact-specific, case-by-case basis. But some of the things that they normally look at is the party's age. So if someone is significantly older, um that may play an impact, or if they're younger, they look at employability of the spouse who's asking for spousal maintenance. They're looking at the other spouse's ability to pay spousal maintenance, they're looking at um past work experience, they're looking at the length of a marriage. So an example, just an easy example would be if you are 30 years old, maybe you've been married for five years, um, and you've worked during the course of your marriage, you have a college degree, that's probably less likely to get spousal maintenance than if we're looking at someone who was a stay-at-home mom for 50 years, maybe just has a high school degree and hasn't really worked outside of the home.

SPEAKER_00: 5:32

And that honestly is the scenario, at least for the the 10-year eligibility, that we see alimony being awarded is when the parties don't have a very large estate, and there is one party that there's really a disparity in their income earning ability. Like, say somebody has been a stay-at-home parent uh for a number of years, it's difficult to get back into the workforce, especially later in life. That's where we see alimony to try to allow that person to re-enter the workforce, gain some skills, and be able to get a job so they can provide for themselves. But but still, it is temporary. It's not supposed to take them until retirement age. It's supposed to just be able to help them get back on their feet. So a few other things that the court will take into consideration is the physical condition, the emotional condition of the spouse that would be receiving uh alimony or spousal maintenance, mainly, are they able to work? Are they able to hold down a job to provide for themselves? Are they receiving adequate child support? Is that child support help put a roof over their head and put food in there in the child's belly? Um, they'll they'll also look at things like excessive or or abnormal spending. If uh there is uh a spouse that has a high-paying job, um, but they've they spent a lot of money, and so there's really a minimal estate that's really not fair to the other spouse. And so they could issue uh some alimony to help make up for that as kind of like a remedy to the waste that that spouse has had. And then um the spouse's contribution to the other spouse's education or their training. Uh so for example, if one spouse supports the other spouse when uh they go through medical school or law school or some sort of uh educational program, all of those things uh and including when I left out would be, you know, just the grounds for divorce uh could also be another factor. Um, cruelty is one of the factors and adultery. All of these things are considered by the court when determining the uh the the duration, um, the amount. Tell us a little bit about are there specific guidelines that the courts will use to determine the amount or at least the the maximum amount that somebody could be forced to pay?

SPEAKER_01: 7:49

Yeah, so um again, the court has a lot of discretion in determining the amount, but the Texas Family Code, chapter eight, does put in a maximum amount. Um so the first step is calculating 20% of the most monthly gross income of the person from whom you're requesting spousal maintenance. So you would calculate that number and the court could the maximum that a court could award is$5,000 or 20% of that monthly gross income, whatever is less. So if you calculate 20% of someone's monthly gross income and it comes out to 6,000, well, the maximum that they can award in that case would be 5,000. Uh versus if you calculate the 20% and it comes out to being 3,000, the court can, the max then becomes the 3,000 because that's less than the 5,000.

SPEAKER_00: 8:32

And gross income similar to child support really includes just about everything salary, commissions, overton, tips, bonuses, dividends, it includes everything, severance pay, retirement benefits, and so it is um an all-encompassing amount. Tell me about the duration. Are there specific provisions in the Texas Family Code uh that that indicate what the duration should be, or at least the maximum duration?

SPEAKER_01: 9:00

Yeah. So for um the maximum duration, if you've been married for more than 10 years but less than 20 years, or if you're basing your claim for spousal maintenance based on family violence, the maximum amount of time that a court can award the spousal maintenance is five years. If you've been married more than 20 years but less than 30, the maximum amount of time would be seven years. And then if you've been married for more than 30 years, the maximum amount of time would be 10 years. Um, it's important to note that if you have a physical or mental disability or if your child who you're taking care of, a court can award um spousal maintenance for longer than that. But if you're basing it off of the years of marriage or family violence, those are the maximum amount of time that a court can award.

SPEAKER_00: 9:42

So the only way that you'd be able to get spousal maintenance for really an indefinite period of time would be is that there's some sort of disability that's either affecting a child of the marriage or one of the spouses. But it's really not indefinite. It's really just as long as that disability exists. So give give me some scenarios of when a court might uh award spousal maintenance, at least some that you've seen in your practice.

SPEAKER_01: 10:07

Um, I think it's definitely the longer marriages. Um, I think it's when one of the spouses stayed home. Maybe their contribution to the family wasn't working in the formal economy, but they were supporting the family by taking care of the children. Um, maybe they don't have as much of the education, they don't have the skills. So they're really needing that spousal maintenance in order to gain those skills in education and just have the opportunity to go apply for jobs. Um, so longer marriages, uh older per older couple, um, you know, I don't want to say like less education, but maybe their education was a while ago and they they need a refresher. Right. Those are the situations that we see spousal maintenance.

SPEAKER_00: 10:46

Yeah, well, it's difficult when you've been out of the workforce for a significant period of time. There's usually a re-entry period that includes some new training. And I think it deserves to be said again. The courts want to see that there is effort being made by the party that would be receiving alimony to see kind of what is their trajectory to get off of the alimony. And they want to see that they're applying to jobs or they're getting education. All those things play a large role in in what the court considers for when awarding uh alimony and what the duration, what the amount would be.

SPEAKER_01: 11:18

Yes, exactly.

SPEAKER_00: 11:20

All right. Our next question is how do I lower spousal maintenance or alimony after a Texas divorce? So this goes to folks that are uh the payor of spousal maintenance in Texas, and there might be circumstances where they might be able to get their spousal maintenance lowered. So the first part would be during the divorce, what can happen to maybe avoid getting uh alimony issued against you at all? What can you do?

SPEAKER_01: 11:47

Um, I think you might have mentioned this earlier, it's giving maybe your spouse a little bit more of the community estate. So normally when we're doing a division of a community estate in Texas, a lot of times people think it's 50-50. It's a just and right division of the community estate. So sometimes that's 50-50, sometimes that's 51, 49, 52, 48. So if you don't want to pay spousal maintenance, maybe you want to give them a percentage point or two more of the property so that you're done, you know, you've given it to them and then you can move on. You don't have to worry about paying the spousal maintenance. That's normally what we see because you can make the argument, you know, I just gave you X amount of dollars more and use that money in the interim to go get that education, those skills, and apply to jobs and start earning your own income.

SPEAKER_00: 12:32

And the court could make that decision for you if you go to a final trial. Say you have a$500,000 estate and you have multiple assets, the court kind of allocates them as the court sees appropriate. The court could say somebody's going to get$280,000, somebody's going to get$220,000, as opposed to dividing it 50-50 and then awarding spousal maintenance. If I'm the person that's receiving uh alimony, I want that because I don't want to have to think every month is is my former partner going to write the check to me that I'm dependent on every month. So the courts recognize that. And I certainly, if if I have a client that would be receiving uh alimony, I would tell them take the money up front. So that way you don't have to worry about it and you know it's going to be in the bank when you need it.

SPEAKER_01: 13:22

Yeah, because if you don't get it up front, then you're filing an enforcement, which is a whole new lawsuit, a lot more legal fees, probably have to hire an attorney again. And I think it just gets a lot more stressful than I think people may realize.

SPEAKER_00: 13:34

Absolutely. So if you're trying to lower your spousal maintenance or your alimony after a divorce for whatever reasons, what reasons possibly could there be that you could get your spousal maintenance lowered?

SPEAKER_01: 13:49

So there's a couple ways you can actually like terminate it completely. One would be obviously if the spouse who's receiving the spousal maintenance passes away. Um, another one is if they get married. Um, another option you can do if is if they start cohabitating with a person. Um it needs to be a romantic relationship. It's not just they're cohabitating with their cousin or yeah. And it needs to be an ongoing cohabitation. It's not okay, they went on vacation for a week in cavo and now I want to lower my spousal maintenance. So those are a couple ways that you can um lower your spousal maintenance. And then sometimes, you know, when you're going through a divorce, you are having a certain amount of income coming in because you have a certain job. If you end up, you know, during the process losing that job after the divorce, you can file a modification and ask the court to lower your spousal maintenance. You pretty much should just be saying, like, Your Honor, like a material and substantial change has happened since we got divorced. And that is, I've lost my job. I no longer have the income to pay my spousal maintenance. And so at that point, you can ask the court to lower what you're obligated to pay.

SPEAKER_00: 14:53

So former spouses that are getting uh alimony need to be very aware that before you get remarried or before you even live with somebody that you have a romantic relationship with, be careful doing that because that could mean that you could not just have the alimony lowered. It could end completely. And people that are paying alimony need to be vigilant if they see their former spouse living with somebody or they see, you know, uh they see a picture on Facebook of them and uh and uh getting remarried, then they know that they can go back to court and they can end that obligation. But that would require going back to court and advising the court that it needs to be ended. And then I think what a lot of people don't realize is the last part of what you said is that you can file a modification. And you know, if you lose your job or you get a lower salary, you can go back to court and it's complete within the court's jurisdiction even years after a divorce is entered. The court still maintains jurisdiction to uh lower that spousal maintenance amount. They're not gonna ha they're not gonna raise it, but they can lower it.

SPEAKER_01: 15:58

They can lower it. And they cannot increase the amount of time that you have to pay it. They can only decrease that. Right. So all right.

SPEAKER_00: 16:06

Our next question is what is contractual alimony in a Texas divorce? And I think when we're talking about contractual alimony in Texas, it's important to differentiate it between spousal maintenance. And spousal maintenance has a very specific definition and set of eligibility requirements under chapter eight of the Texas Family Code. Tell us first about what spousal maintenance is, and then we could talk about contractual alimony.

SPEAKER_01: 16:32

Yeah. So spousal maintenance has kind of just been everything that we've been talking about. You have to prove you're unable to meet your basic minimum needs, and you have to prove one of the four things that we discussed. Uh, that's governed by the Texas Family Code. Contractual alimony is kind of what it sounds like. It's a contract, it's between you and your spouse. Um, one of the positives of it is because it's a contract, you can kind of come up with the terms that you want. Um, maybe your spouse wouldn't have qualified for spousal maintenance under the Texas Family Code because they could always meet their basic minimum needs, or maybe you were married less than 10 years, there's no disability, there's no family violence. If you still want to provide your spouse with that spousal maintenance, maybe it's uh from a strategy standpoint and mediation, and you're trying to come to an agreement, you can still do that because you're not governed, you're not limited by the Texas Family Code on their like maximum amount or their duration or their eligibility requirements.

SPEAKER_00: 17:23

I think one question that folks might have is why would anybody willingly agree to pay alimony in contractual LMA? Because that's what it is. It is a contract that you are entering to agree to pay a certain amount of money to the other person. And there's really a number of reasons. One of which is one of the spouses could just honestly feel that the other person needs a runway to be able to get back onto their feet and they're realistic and they're reasonable, and they want to be able to help them get on their feet. Another reason would be that potentially if there is uh, you know, not enough liquid cash in the estate, say somebody is getting a house and that's the largest asset that they have, and there's not enough money to equalize that. So somebody's getting a$300,000 house and there's not$300,000 on the other side, then you can agree to do contractual alimony and say, I'm going to pay you$300,000 or whatever you agree over a certain number of years in order to help equalize that. It's kind of like an equalization payment. So there are a number of reasons why you would do it. Um, alimony isn't just something that, you know, is kind of forced into in court, um, but a court in Texas cannot award contractual alimony. They can only award spousal maintenance under chapter eight of the Texas Family Code. And there are some drawbacks to contractual alimony that don't really exist in uh spousal maintenance. What is the the number one drawback you would say with contractual alimony?

SPEAKER_01: 18:58

I would say the number one drawback is how we talked about you can modify spousal maintenance under chapter eight of the Texas Family Code.

SPEAKER_00: 19:05

Like if you lose your job or if you uh get a lower salary or just any type of material and substantial change.

SPEAKER_01: 19:11

Exactly. Because contractual alimony is a contract, you can't go to the court and ask them to modify it because the court just does not have that power. So it gives you less flexibility long term if that if that's a possibility that you would lose your job. You still need to pay the contractual alimony because if you don't, your spouse can take you to court and say that there's been a breach of contract.

SPEAKER_00: 19:32

Yeah, there's no way to get around it. And um, but on the other hand, I guess you could say one of the advantages for somebody that comes from the standpoint of that's paying the uh contractual alimony is that there's very different penalties that could come from not paying spousal maintenance and contractual alimony. So if you don't pay contractual alimony, then you can get a judgment that's issued against you. Um, and just like if you didn't And pay your credit card bill, you would have to pay it over time. You'd have a judgment, it would appear in your credit report. Texas has very strong protections uh against uh judgment debtors. And so it's very difficult to collect on judgments in Texas, either fortunately or unfortunately, depending on what side that you're on. But there are some very serious penalties if you don't pay spousal maintenance. Tell us a little bit about that.

unknown: 20:28

Yeah.

SPEAKER_01: 20:28

So if you don't pay spousal maintenance, what your spouse would file with the court is an enforcement. Um, and they pretty much should be saying like to the court, I have this court order, and in that court order, they're ordered to pay me a certain amount of money each month, for example, and they're not paying that. I want court, I want you to enforce this order. And what that looks like is, you know, if you're violating court order over time, the worst penalty that could happen is that you're thrown in jail. I mean, that's never, in my experience, that's not a court's first step. Um, but if you continue to continue to violate court orders, that's ultimately what could happen.

SPEAKER_00: 21:05

And usually the court's gonna do that if it's been made plainly clear that you have the ability to pay the money and you are just refusing to do it. But if you just if you truly have lost your job um or you uh are getting a lower salary, my advice to anyone in that situation would be don't wait for the enforcement to happen where you are potentially risking being held in contempt of court or risking jail time. Be proactive, file the modification, show the court that there's a material and substantial change in circumstances so you can get ahead of it. If you can show that you can't pay it, I would rather the court say, if I were your attorney, that uh your child, your um alimony amount is lowered than you having to go to court and be reactive and saying, please don't put me in jail because I lost my job six months ago. So be proactive. And a big part of that is getting legal counsel on board as soon as possible. Uh there's serious consequences. This is a complex area of Texas family law. And an advocate is going to help guide you through this process through and through.

unknown: 22:13

Yeah.

SPEAKER_00: 22:14

So the the last piece that I would uh say regarding uh alimony and uh spousal maintenance would be that really this is a tool that's used by the courts and by parties, either in mediation or in a final trial, to try to make sure that one spouse doesn't leave a marriage completely unable to care for their needs. And so if you are either on the receiving end and you feel like I'm worried about being able to put a roof over my head after my divorce is finalized, seek legal representation to help you guide you through that process to make sure that you're taken care of. At our firm, um, you know, we work with a slew of different experts, financial experts, um, divorced financial analysts, um, forensic accountants that will help guide you through that process and make sure that you're gonna be okay. And if you're on the paying end and you have some sort of disruption to your income, come and see us as soon as possible. We want to take care of this uh on the front end so that you're not dealing with something that's really quite severe and dangerous on the back end.

SPEAKER_01: 23:21

Yes, exactly.

SPEAKER_00: 23:22

Well, Hannah, thank you so much for joining us and talking about spousal maintenance in the state of Texas and of course it's uh brother or its sister, contractual alimony. They're two very interrelated thoughts uh very important and uh tools that we use in order to reach equitable outcomes in our divorce cases here in Texas. Thank you.

SPEAKER_01: 23:43

Awesome, thank you.

SPEAKER_00: 23:44

And so if you uh have an issue in the greater Houston area involving family law or divorce, child custody, name changes, adoptions, we've got four locations throughout the greater Houston area. You can find us at family lawyerkatie.com. Please like and subscribe if you're watching us on YouTube and like us on Apple Podcasts and Spotify to get the next episode. Thanks for joining us. We'll see you next time.