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By Scott Morgan |
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Post-Divorce Alimony in Texas
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Contractual Alimony
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 Texas Family Code Chapter
Eight. 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:
1. 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
2. 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 at the lesser of:
a) $2,500 or b) 20% of the monthly payor's gross income.
The maximum duration of court ordered maintenance is three years. The only
exception is when maintenance is ordered as the result of a disability, in
which case the duration can potentially extend indefinitely.
Considerations
Where there is a large disparity in incomes alimony can sometimes be used as
a useful settlement tool. Since alimony is generally taxable to the
receiving party and deductible to the paying party it can be often
structured so that it is advantageous to both parties.
For example, a party in a high tax bracket can agree to make monthly alimony
payments in exchange for a more favorable property division. If the
receiving party is in a lower tax bracket, the overall income tax paid could
be significantly lower than what it would be otherwise.
Another factor to consider is how rarely Texas trial courts order
maintenance, absent an agreement. The statute allows for maintenance only
when the specific statutory circumstances have been proven. There are
several appellate cases that have reversed trial court decisions ordering
maintenance when the requesting party did not provide sufficient proof that
the standard had been met.
In cases where there is a large amount of community property, one of the
most effective arguments in attempting to defeat a maintenance claim is that
the requesting party will have ample resources to provide for their needs
since the party will receive a significant amount of assets from the
division of property.
Another common argument used to defeat a maintenance claim is that, during
the pendency of the divorce, the requesting party has not made significant
attempts to either obtain employment or obtain training that would allow the
party to obtain employment.
As an example, lets take a divorce case where the wife is requesting
maintenance on the grounds that the marriage is longer than ten years and
that she lacks the earning ability to meet her minimum reasonable needs.
If the case has been pending for several months and at the time of trial she
has still made no effort to obtain employment or improve her job skills, it
will be a difficult claim to succeed upon. The court is unlikely to find
that she is "unable" to meet her reasonable minimum needs and more likely to
believe that she is unwilling to take the necessary steps in order to
provide for her own support.
Conclusion
Alimony in Texas, while rarely ordered, is an important and complicated
issue. It can be used as an effective settlement tool and can potentially be
a significant trial issue. For someone involved in a Texas divorce case with
a potential alimony issue, the issue should be discussed in detail with an
experienced divorce lawyer.
About the Author
Scott Morgan is a practicing Texas divorce attorney. For more information on
texas divorce visit his website at The
website provides general information and resources on divorce, as well as
specific information on Texas divorce law.
Article Source : www.womenbrands.com
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