Williams Birnberg & Andersen, L.L.P. : Attorneys at Law : Houston, Texas
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Ms. Malone heads the Family Law division at Williams, Birnberg & Andersen. She practices primarily in the areas of divorce and child custody.

Family Law
Will I Be Able to Receive Alimony in My Divorce Case?

Texas courts do not like to use the "A" word; instead we call it "spousal maintenance." The statute making it possible for maintenance was not passed in Texas until 1995, and the courts had been putting pressure on the legislature to write the statute since 1982. A female legislator argued on the House floor that women are the ones who are usually left with the children, have less income, and usually end up on welfare. By passing the maintenance statute, she argued, it would leave fewer children as wards of the state.

In order for a spouse to receive such maintenance, he or she must meet the eligibility requirements. The marriage must have lasted for more than 10 years and the requesting spouse lacks sufficient property, is unable to support him/herself through appropriate employment and clearly lacks earning ability in the labor market. Another way in which a spouse is entitled to receive maintenance is if he or she is the custodian of a child of the marriage of any age who requires substantial care and personal supervision (has a disability or special needs). The issue of whether the spouse is physically or mentally unable to support him or herself has gone to a jury on several occasions. Also, a spouse may receive maintenance if the other has been convicted of or received deferred adjudication for a criminal offense of family violence. In that case, it is not difficult to prove and there is a broad means for the lawyer to establish the need for maintenance.

Once spousal maintenance has been awarded, it may only last for up to three years and it can only be the lesser of $2500 or 20 percent of the spouse’s monthly income. It should be noted that in some cases even though the spouse has not met the requirements to receive maintenance, the court has the discretion to award temporary maintenance while the divorce suit is pending a final judgment. In addition, the trial court has great discretion of whether to award it or not, and it is not a jury issue to decide. Some factors the court can use to help determine whether to award maintenance to one spouse is duration of marriage, age, financial resources, marital misconduct, efforts to pursue employment, and contribution by one spouse to the education and training of the other, in addition to many others.

In some cases, the parties to the divorce suit have contractually agreed that one of the spouses will pay the other a certain sum of money for a period of time. This is considered contractual alimony, and while it is enforceable as a contract, it is not a court order and therefore not enforceable through contempt. One case went all the way up to the Texas Supreme Court because a key issue was whether the couple’s agreement was actually alimony. The Supreme Court ruled that while the trial court could approve of the agreement, it could not enforce it since it was not a valid court order that the court had entered.

Williams, Birnberg and Andersen, L.L.P.

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