The Difference Between Spousal Maintenance and Contractual Alimony

The Difference Between Spousal Maintenance and Contractual Alimony If you are seeking a divorce in Killeen or Copperas Cove, you may be able to seek (or have to pay) spousal support. This is extra money – separate from the marital property – that one spouse temporarily pays to the other to help support them financially after a divorce.

Under Texas law, there are generally two kinds of post-divorce spousal support available in the state: court-ordered spousal maintenance and contractual alimony. Although they both provide monetary support for the requesting spouse, substantial distinctions can be made between the two.

What is spousal maintenance and who qualifies for it?

Spousal maintenance is not mandatory in Texas; however, courts may order it in situations that meet the requirements set forth in state law. It is decided on a case-by-case basis , and may be awarded if one of the following circumstances exist:

  • The paying party was convicted of family violence within two years of the divorce filing or while the divorce is pending. The duration of the marriage is not relevant.
  • The marriage lasted for at least 10 years and the requesting spouse does not have enough property to provide for their reasonable needs and cannot support themselves through employment due to their own disability; because they are the custodian of a disabled child; or they lack the earning power to provide for their minimum reasonable needs.
  • The parties agree that spousal maintenance will be paid for a specific period.
  • The requesting spouse is a sponsored immigrant enforcing an Affidavit of Support executed by the other spouse requesting that the Court order the sponsor to provide alimony equal to 125 percent of the Federal Poverty Guidelines until they obtain U.S. citizenship or earn 40 credits or more of work history.

The requesting spouse will be required to demonstrate that they have diligently searched for employment, training, and educational opportunities; however, this requirement does not apply in cases where an Affidavit of Support is being enforced.

How is the amount of spousal maintenance determined?

Once eligibility for spousal maintenance is established, the court will use a variety of factors to determine how much is appropriate, and for how long. These factors include:

  • Each spouse’s ability to provide for their own needs independently
  • The educational and employment background of both spouses, as well as the time required for the requesting spouse to attain the education or training to necessary to earn a sufficient income
  • The length of the marriage
  • The age, employment history, earning capacity, and health of the requesting spouse
  • The contributions of a spouse as a homemaker
  • The ability of either party to pay spousal maintenance while making periodic child support payments, if applicable
  • Any excessive or abnormal spending practices or destruction of community property by either spouse
  • The contributions of one spouse to the education, training, or increased earning capacity of the other
  • The property brought into the marriage by either spouse
  • Adultery and cruel treatment by either spouse
  • A history of domestic violence by either spouse

After considering all the relevant factors, Texas courts may rule that the requesting spouse receives no support, the maximum support allowed, or an amount in between. Courts awarding post-divorce spousal maintenance may only order monthly payments of up to $5,000 each month or 20 percent of the paying party’s average monthly gross income, whichever is less.

How are spousal maintenance orders enforced?

Texas courts can enforce orders for spousal maintenance through contempt proceedings. If a party is found to be in contempt of court, a judge might issue a fine, order jail time, or both.

For a court order to be enforced through contempt, it must contain “command language” that is clear, specific, and unambiguous. If a court order is too vague to be enforced by contempt, the court can revise or clarify the order and give the party an opportunity to comply with it. Another enforcement option is to address spousal maintenance conflicts through voluntary or court-ordered mediation.

What is contractual alimony and who can get it?

Texas Family Code does not contain a specific provision for alimony. Instead, contractual alimony is voluntarily paid (without a court order) under a contractual agreement by one spouse to another. It is based on a private agreement between the spouses that establishes how much will be paid, how long it will last, and what factors may cause it to change. Spouses are free to negotiate its terms and what provisions to include and exclude.

There are no legal eligibility requirements that govern contractual alimony. If the paying spouse has adequate resources and agrees to pay it, contractual alimony can a provide steady monthly income to the other spouse for a set period. This could allow them to stay in the marital home or to help them obtain the education or training necessary to establish or enhance their career.

Contractual alimony is usually temporary and ends upon the death of either spouse. However, it will not stop if the receiving spouse remarries or moves in with a romantic partner. Instead, the paying spouse must include those specific terms in the divorce decree for contractual alimony to end.

How is contractual alimony enforced?

If a spouse fails to provide the contractual alimony they agreed to pay, the alimony agreement will be treated as a contract and the applicable rules of contract law will be applied to enforce the terms. Contractual alimony cannot be enforced by contempt against the nonpaying spouse – the court can only enforce the agreement according to the length of time and amount of spousal maintenance the court could have ordered under Texas law.

When divorcing spouses consider spousal maintenance or contractual alimony in Texas, they must put their emotions aside to fully understand their options. However, a competent attorney who is experienced in spousal maintenance and contractual alimony can explain the implications of both to help them reach a reasonable agreement, if possible. For reliable legal advice regarding spousal maintenance and contractual alimony in Killeen and Copperas Cove, contact Mary Beth Harrell Law Firm or call 254-680-4655  and set up your initial case evaluation today. Also serving Bell County, Coryell County, Temple, and Belmont.