State Bar of Texas

Spousal Maintenance

Provisions for spousal maintenance come out of Chapter 8 of the Texas Family Code. Its purpose is to give a spouse temporary assistance in paying their bills after a divorce, to get back on their feet. Maintenance is meant to be temporary and only if the spouse cannot effectively support themselves. The typical situation is the spouse who leaves the workforce to take care of the children and the house. This, by the way, saves money on daycare and is a noble calling. Unless the stay-at-home spouse has some special skill, it will take some time to begin working and earning a living for an entire household. Texas Spousal Maintenance comes from the legal obligation of spouses to support each other. As in financial needs. Although maintenance is an effort to be fair, it is not automatic.

To be eligible to receive spousal maintenance in Texas, the spouses must be just that…spouses. You must be able to prove the marriage. Also, the spouse must be in at least one of these situations:

  • Spouses must have been married for at least 10 years. The receiving spouse must also be unable to support themselves.
  • The paying spouse was convicted of or received deferred probation for committing family violence against the receiving spouse or their child. The receiving spouse does not have to prove they are unable to support themselves, but the family violence must have occurred with 2 years of the divorce.
  • A spouse who has a disability which prevents them from supporting themselves is eligible for spousal maintenance.
  • A spouse who has custody of their disabled child. The child must require special care and that care prevents the spouse from earning a sufficient income.

Proving Need for Spousal Maintenance

Unless the spouse or a child is disabled, or unless the spouse has been assaulted, the spouse must prove the need for spousal maintenance. Texas Family Code Section 8.051(2)(B) and Section 8.053 tell us that to get spousal maintenance, the spouse must show that he or she:

  1. Lacks sufficient property, including their own separate property to provide for minimum needs
  2. Lacks the ability to earn sufficient income to provide for their minimum needs
  3. Has made diligent efforts to either earn sufficient income or get the necessary skills to earn that income.

So the spouse seeing the maintenance has the burden of proving the need. The court will look at many factors to determine whether a spouse is eligible. Texas law requires the court to determine the nature, amount, duration, and manner of payments by considering many factors. These factors come from Texas Family Code 8.052. There are:

  • Each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;
  • The education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
  • The duration of the marriage;
  • The age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
  • The effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
  • Acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
  • The contribution by one spouse to the education, training, or increased earning power of the other spouse;
  • The property brought to the marriage by either spouse;
  • The contribution of a spouse as homemaker;
  • Marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
  • Any history or pattern of family violence, as defined by Section 71.004.

Duration of Spousal Maintenance, Texas Family Code 8.054. The court is bound by a cap on the time it can give spousal maintenance. Having said that, though, the court will only give spousal maintenance for as long as it takes for the receiving spouse to be able to pay their minimum needs.

Reason for MaintenanceMaximum Time
Family violence only5 years
Married at least 10 years5 years
Married 20-30 years7 years
Married over 30 years10 years
Spouse is disabledAs long as disabled
Spouse caring for disabled childAs long as child is disabled

A court will give only the amount in spousal maintenance as is necessary to help the spouse with minimum needs. The maximum it can give is either $5000 per month or 20% of the paying spouse’s monthly gross income, whichever is less. Even so, the court will only give as much as it thinks the receiving spouse needs.

As far as spousal maintenance goes, if it looks like the court will look for reasons to not give it and for the least amount of time and amount possible, you are right. Spousal maintenance in Texas is not a jackpot.

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