Some type of alimony statute has been presented to the legislature every session since 1985. What enabled this statute to pass was that it was attached as a rider to the Welfare Reform Act. In this manner, it was sold to the legislators as a means to keep persons off of welfare, which saved the taxpayers money. Historically, if there was a spouse who was not the wage earner but stayed home and raised the kids until they were grown, all a divorce court could do was award a disproportionate division of the estate to that spouse; such as dividing the property 60%-40% instead of 50%-50%. That system worked if the estate happened to be large. In that case the wife could be awarded 60% of the marital estate instead of 50%, which would generate additional funds. With the extra money the wife could live off income from the property or rehabilitate herself and develop job skills and earning capacity, and thus not be a threat to the welfare system. However, in situations where the marital estate was limited and the assets were non-liquid (such as a home, car, furniture, and retirement benefits down the road), a disproportionate division of the estate would not pay the monthly mortgage on the home, or the car payment or the food bill. Left with property but no way to pay for it, the wife either took any job she could find because there was no money or time for schooling, or she wound up in the welfare system. Given this scenario, the legislature was not threatened by the mass of Texans who were against alimony because what they were doing was passing legislation to keep persons off welfare and placing the burden for their short term care not on the taxpayers, but instead on the responsible spouse.
So, our maintenance statute under Section 3.9601 of the Texas Family Code passed without much controversy and it states that the purpose of alimony is only as a temporary rehabilitative measure for a spouse (who must have been married, thus this does not apply to persons who co-habit) whose ability for self-support is lacking or who has deteriorated through the passage of time while that spouse was engaged in homemaking activities and whose capital assets are insufficient to provide support. Our alimony statute is not a "lifestyle" statute so it will never be utilized to maintain the lifestyle of a particular individual.
One limited way to be eligible to receive alimony is when the paying spouse has been convicted of or received deferred adjudication for a criminal offense involving family violence which occurred within 2 years of the date of filing the divorce suit, or when violence occurred during the pendency of the suit. In that case the State will not require a battered spouse to stay in an abusive relationship for up to a period of 10 years, as is required in the more conventional scheme, discussed below. Note that the words convicted of or received deferred adjudication are emphasized. The mere filing of protective orders or having a protective order issued is not going to be enough to qualify for an alimony award.
The second and more common way that persons will be eligible to receive alimony is if the marriage lasted more than 10 years and a spouse lacks property (which is awarded to him/her) to provide for his/her minimum reasonable needs; and
Thus, the court will have to find that there was a ten year marriage and that one of the above factors existed in order to award alimony.
Under Section 3.9603 of the Texas Family Code, the legislature listed the factors to be used by the court in determining eligibility for maintenance, which include the following:
a. the financial resources of the spouse seeking maintenance including separate and community property, liabilities and that spouse's ability to meet their needs independently;
b. the education and employment skills of the spouse and the time necessary to acquire sufficient education or training to enable the spouse to find appropriate employment, the availability of that education and the feasibility of that training;
c. the duration of the marriage;
d. the age, employment history, earning ability, and physical and emotional condition of the spouse;
e. the ability of the paying spouse to meet their needs, to pay child support and meet the receiving parties' needs;
f. excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community property;
g. the comparative financial resources of the parties including medical, retirement, insurance or other benefits;
h. the contribution of one spouse to the education, training or increased earning power of the other spouse;
i. any property brought into the marriage;
j. contributions of a homemaker to the marriage;
k. any marital misconduct of the person seeking maintenance;
l. the efforts of the person seeking alimony to pursue available employment.
Since the concept of alimony is opposed by many people, the statute provides a presumption that maintenance is not warranted unless the spouse seeking maintenance is seeking suitable employment or is developing the necessary skills to become self-supporting during any period of separation and during the pendency of the divorce suit (unless by reason of an incapacitating physical or mental disability).
The maximum amount the court can order in alimony payments is $2,500 or 20% of average monthly gross income of a spouse, whichever is less. Since alimony is defined under the federal tax guidelines, the payor spouse will be able to deduct those payments against their gross income on their tax returns and the payee spouse will have to claim such monies as income. Tax planning should therefore be considered, such as the recipient paying quarterly tax payments. However, the court may have the ability to specify that the payments will be non-deductible by the payor and non-includable by the payee on their tax return, which actually increases the value to the payee. The court will decide the deductibility/includability issue on a case by case basis and care should be taken to address this in the divorce decree. In considering the 20% cap on payments, the court cannot include and consider V.A., Social Security, Disability Benefits, or Worker's Compensation benefits.
The monetary payments are to be terminated as soon as possible and not more than three years from the date of inception. The payments should be terminated sooner when the spouse is able to be employed or has acquired the skills to become self-supporting. The court will retain jurisdiction to review the economic circumstances and can order cessation of the payments earlier than initially ordered. Alimony payments can be modified (only reduced) for material and substantial changes of circumstances. The payments can only be extended beyond three years if there exists an incapacitating physical or mental disability at the time of the institution of the maintenance order (not if it occurs after the divorce). If the court orders indefinite payments because of an incapacitating physical or mental disability, it will also order periodic reviews and may modify the payments downward (never upward) if justified under those circumstances.
The alimony payments will terminate on the death of either party or on the remarriage of the recipient. Also, if a recipient cohabits with another person in a permanent place of abode on a continual conjugal basis, the alimony will cease.
The payments can be enforced by contempt or with a monetary judgment. The only defenses to non-payment are that the payor lacked the ability to pay, lacked property that could be sold or could not borrow to satisfy the obligation.
It is easy to read the statute and understand the law. What is not easy is to predict the effect of the statute and how often a court will order alimony. Alimony will certainly be asked for in most cases when a party may be eligible, simply as a negotiating ploy or to gain a disproportionate division of the estate. Will attorney's tell their clients to stop working or not seek employment so they will be eligible for alimony? Would you give up a job that has a future for advancement and job security simply to be eligible for 36 months of alimony? Will this statute keep people off welfare? Only time will tell. It is certain that at the next legislative session uses and abuses of the statute will be discussed and the statute will either be discarded, fine-tuned or even expanded.