In order to understand the ability of a spouse to modify an existing spousal support order in Texas, it is necessary to understand when spousal maintenance will be authorized. Unless the spouses reach a contractual agreement (called contractual alimony), spousal maintenance can be ordered if the family court determines that one spouse needs financial help to provide for their minimum reasonable needs. Spousal maintenance can be ordered while the divorce is pending and after the divorce is final.
The factors that determine the amount and length of spousal maintenance include the educational and employment skills of each spouse; the length of the marriage; the “age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;” the ability of the other spouse to pay for spousal maintenance and child support, the contribution of the spouse seeking spousal maintenance to the education and ability of the other spouse to earn a living, and other factors.
Is there a maximum amount of spousal support that can be ordered in a San Antonio divorce?
The amount of a spousal maintenance order is capped at $5,000 per month or 20 percent of the obligor spouses’ gross income – whichever amount is less. Gross income includes wage and salary income, self-employment income, interest, dividends, royalty income, net rental income, and income actually being received (retirement benefits, severance pay, pensions, trust income, unemployment benefits), and other income sources listed in the statute.
Gross income does not include public assistance benefits, accounts receivable, return of principal or capital, Social Security income, Social Security benefits, disability benefits, foster care payments, and other listed types of income.
Can a spousal maintenance order be terminated?
Most spousal support orders have a defined termination date, unless a spouse is disabled or caring for a disabled child. The defined terminations are between five and 10 years, based on the duration of the marriage (10 years or more) or if the spousal maintenance is based on a partner’s conviction of a family violence offense.
The person paying spousal maintenance can also seek to terminate a spousal maintenance order if the spouse receiving support:
- Dies; or
- A court finds the spouse receiving support (the obligee) “cohabits with another person with whom the obligee has a dating or romantic relationship in a permanent place of abode on a continuing basis.”
The obligor is required to pay any arrears that accumulated prior to the date of termination.
Can a spousal maintenance order be modified?
Generally, contractual alimony agreements can only be modified by agreement or based on the specific terms of the contract. Contractual alimony agreements should discuss when and how the terms of the agreement can be modified.
The party seeking to modify spousal maintenance or modify a qualified domestic relations order (used to distribute retirement benefits) must comply with the Texas Rules of Civil Procedure. These rules govern how notice of the motion to modify an existing order is given, the time for a reply, and the setting of a hearing date.
A support maintenance order or a qualified domestic relations order can be modified on showing that there has been a material and substantial change in circumstances that happened after the date of the order (or decree) relating to either party or to a child of the marriage.
These additional conditions apply:
- Any modification only changes the payments due after the filing of the motion to modify.
- The modification may not increase the amount of maintenance or the duration of payments that are due.
- The party asserting a material and substantial change of circumstances must provide evidence in support of their claim.
- A claim by a former spouse that they cannot provide for their minimal needs due to an “incapacitating physical or mental disability that occurs after the divorce or annulment is not grounds for the institution of spousal maintenance for the benefit of the former spouse.”
Essentially, the spouse who is paying spousal maintenance can seek a reduction of the amount due for good cause, such as a loss of income for legitimate reasons but a former spouse cannot seek an increase of spousal maintenance.
How is a spousal maintenance order enforced?
The spouse seeking to enforce a spousal maintenance order can seek to hold the former spouse who is obligated to pay support in contempt. If the spouses entered into a contractual alimony agreement, the court can only consider contempt for the amount and length of payments that would have been had the court made the spousal maintenance support decision.
The court can enter judgment against a defaulting spouse for the arrearages after the obligor spouse has been given a chance to reply and after any court hearings. The judgment can be enforced in the same way that civil judgments can be enforced in Texas.
The obligor can assert certain defenses, including that the obligor:
- Lacked the ability to provide maintenance in the amount ordered.
- Lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed.
- Attempted unsuccessfully to borrow the needed funds.
- Did not know of a source from which the money could have been borrowed or otherwise legally obtained.
The obligor must plead an affirmative defense and prove that defense by a preponderance of the evidence.
Many spouses who have been married 10 years are entitled to spousal maintenance. Spouses can voluntarily agree to provide spousal maintenance even if they were married for less than 10 years. At Grable Grimshaw PLLC, we fight for spouses who deserve spousal maintenance and for spouses who need to limit how much spousal maintenance they pay. We also understand how to enforce spousal maintenance orders when your former spouse is in arrears and how to seek a modification of a spousal maintenance order. Call our office in San Antonio or submit our contact form today to schedule a free consultation and discuss your spousal maintenance rights.