Spousal Maintenance Laws in Texas

August 14th, 2014

Texas spousal maintenance can be a useful and effective tool in a divorce. A spouse lacking sufficient property or the means to provide for his/her minimum reasonable needs, may have awarded additional funds from the other spouse during the divorce and after to help rebuild his/her life following their divorce.

In September of 2011, the Texas Legislature revised and modified the requirements for spousal maintenance including the limits on amounts and duration of time allowed.

The eligibility requirements of the Texas spousal maintenance law is still considered one of the more restrictive spousal maintenance laws in the U.S.

To be able to be awarded Spousal Maintenance (statutory term for spousal support or alimony) you must be married and the spouse seeking support must lack sufficient property to provide for the spouse’s “minimum reasonable needs”. Also one of the following is required:

  1. The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability.

  2. The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs.

  3. The recipient 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.

  4. The person ordered to pay support was convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit was filed.

The Maximum Amount of spousal maintenance the courts may award is $5,000 per month, although it is still limited to 20 percent of the Payer’s average Gross Monthly Income.

   The Maximum Duration of Time for spousal maintenance is:

  • Five years if the marriage is 10 years or less and the eligibility for spousal maintenance is established by an act that constitutes family violence.

  • Five years if the length of marriage is at least 10 years but no more than 20 years.

  • Seven years if the marriage length was at least 20 years but no more than 30 years.

  • Ten years if the marriage length lasted 30 years or longer.

In cases where the spousal maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order the maintenance continue as long as the disability continues.

The spousal maintenance awarded by the court is discretionary and may not always eliminate the shortfall of the requesting spouse’s monthly expenses.

What about Termination of Spousal Maintenance? The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the spouse receiving the maintenance.

If the court finds that the receiving spouse cohabits with another person and is in a dating or romantic relationship in a permanent place of abode on a continuing basis, the court shall order the termination of the maintenance obligation.

Termination of the maintenance obligation does not terminate the obligation to pay any maintenance that accrued before the date of termination and this amount will have to be paid or a judgment will be enforced by the court.

If you are thinking about a divorce in Texas and have questions concerning your eligibility for spousal maintenance contact a legal professional to help you through this process.

 

Texas and the Prenuptial Agreement

August 12th, 2014

In Texas, Prenuptial Agreements are becoming a very important tool for prospective spouses in the event of future marital problems.  With the rise in divorce rates and more boomer/senior remarriages, many people with assets are turning to a marital contract to sidestep a potentially difficult and very expense divorce.

A prenuptial agreement allows prospective spouses to, legally in advance, specifically define rights and obligations to each other and further allows spouses to decide their future marital property rights with relativity minimal judicial actions.  A prenuptial agreement, in Texas,  can cover any matter except:

  1. Violate public policy or a statute imposing criminal penalties

  2. Adversely affect a child’s right to support

  3. Defraud a creditor

Texas Family Code 4.003(a)(8), (b),4.106(a).

Among the permissible provisions that parties can list in a prenuptial agreement are the following:

  1. Rights and obligations of any interest, present or future, legal or equitable, vested or contingent, in real or personal property.

  2. Right to manage, control and dispose, by agreement, property upon separation of the married parties, dissolution of the marriage, death of either party, or other agreed event.

  3. Modify or eliminate spousal support.

  4. Specific matters related to prospective spouses, including personal rights and obligations that are not in violation of state laws.

  5. Choice of a state or country law that will govern the prenuptial agreement.

  6. Creation of a Will or Trust.

  7. Disposing of the Estate upon the death of one of the spouses. Also ownership rights and disposition of benefits from a life insurance policy upon the death.

  8. Waive one party’s right to occupy the family homestead after the other party dies.

Getting a Texas Divorce : Moving Out of the Marital Home

July 17th, 2014

This is a complicated question to answer depending upon the facts of each case.  If you have experienced domestic violence you need to immediately do whatever is necessary to secure you and your child’s safety.  Many times a victim will go to court for a protective order and ask the judge to move the abusive or violent spouse out.  In this situation contact an experienced family law attorney now!

In most cases, absent of violence or risk of abuse, we would not suggest that a spouse move out of the marital residence.

Why is this?  One reason is once you have vacated the residence it may be very difficult to get back in! You have no legal obligation to leave the residence if your name is on the lease or mortgage personally and exclusivity.

Our suggestion to a client might be, to remain in the residence since the person who vacates may still have financial obligations and expenses of the family residence, while paying all expenses on a new residence for themselves. Double expenses are not a desirable result during the divorce process.

The higher wage earning spouse who moves out of the marital home must expect to continue to pay most of the household expenses, including the insurance and mortgage!  What about the personal property and furnishings in the residence?

If an agreement has not been made between the divorcing couple, the moving spouse will generally only be able to leave with personal belongings (clothing & jewelry) until a court rules fairly as to temporary possession.

Secure a court order ASAP to equalize property and household expenses.

Serving clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.