Facing a DivorceUntil about twenty years ago, the answer was “no.” The Legislature enacted limited alimony in the 1990s, and the law has been recently expanded with 2011’s House Bill 901. In sum, more people in need now qualify for more financial assistance from their ex-spouses, and there are still some fairly significant limitations.

Eligibility

The old Section 8 of the Family Code allowed spousal maintenance payments only if the marriage lasted at least 10 years and the recipient spouse was unable to meet his or her minimum reasonable needs, if there was a spousal abuse charge or conviction, and in a few other extraordinary circumstances.

House Bill 901 largely reworked the existing 8.051. Although the same general principles are in effect, there were some significant changes:

  • “Minimum reasonable needs” is no longer defined in the statute, so the judge has more discretion in setting the amount.
  • The family violence conviction can now be against the spouse or the child of the spouse.
  • The old law allowed maintenance if the recipient spouse had to stay home full-time with a disabled child. The new law allows maintenance if the recipient spouse’s income will be significantly affected – maybe the spouse can only work part-time or maybe the child requires expensive home care.

There are also some changes regarding the nature and extent of a spouse’s disability and the eligibility for maintenance.

Factors

When setting the amount of maintenance, the judge can consider “all relevant factors”, including:

  • Need and Ability: How much does the recipient spouse need, and how much can the payor spouse provide?
  • Education and Employment: Does the recipient spouse need to augment his or her job skills to find appropriate employment? The old law implied that any job, even if it was a minimum wage job, would end the eligibility for maintenance.
  • Duration of the Marriage: The longer the relationship, the larger the spousal support award.
  • Fault: Some states do not allow the judge to consider conduct during the marriage when setting the amount, but Texas allows the judge to take into account the marital behavior and misconduct of either party.

Other factors include 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, and the contribution of a spouse as homemaker. Under the old law, a judge could require a spouse to liquidate a retirement fund to either pay bills or pay alimony.

Duration and Amount

Before 2011, there was a cap of three years and $2,500 per month, regardless of the circumstances.

Now, the amount can be up to $5,000 per month or 20 percent of the payor spouse’s income whichever is less.