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Qualifying for Spousal Support, Alimony or Maintenance

Spousal Support

The Texas Family Code requires that “each spouse has a duty to support the other spouse.”  Consequently, during the pendency of a divorce suit, one spouse may be ordered to provide temporary “spousal support” so that each spouse is able to maintain the standard of living each enjoyed prior to the filing of the divorce petition.

Court Ordered Spousal Maintenance

Spousal maintenance is defined by the Texas Family Code as “an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.”  Spousal maintenance is disfavored by Texas law and may only be ordered by a court if:

  1. the spouse ordered to pay support was convicted of family violence within 2 years of the filing for divorce or during the pendency of the divorce; or
  2. the spouses have been married for at least 10 years and the spouse seeking maintenance lacks sufficient property to provide for his or her minimum reasonable needs and is
    1. unable to support himself or herself because of an incapacitating physical or mental disability,
    2. the custodian of a child of the marriage who requires substantial care and personal supervision due to a physical or mental disability, or
    3. the spouse clearly lacks earning capacity to provide for his or her minimum reasonable needs (this requires evidence of diligent efforts to find suitable employment).

Maintenance must be limited to the shortest time that will allow the recipient spouse to meet their minimum reasonable needs, up to a maximum of  3 years, unless the recipient spouse suffers from an incapacitating physical or mental illness or is the custodian of an infant or small child.  A court may not order maintenance that requires a spouse to pay monthly more than the lesser of  $2,500 or 20 percent of that spouse’s average gross monthly income.  Maintenance terminates at the death of either party or upon the re-marriage of the recipient.

Contractual Spousal Maintenance

The divorcing parties are free to contract to terms and conditions of maintenance without being limited by the restrictions placed on the courts when ordering court ordered maintenance.