Is There a Difference Between Temporary Spousal Support, Spousal Maintenance and Contractual Alimony?

Yes there is.

What is Temporary Spousal Support? During the divorce process, temporary support may be ordered depending on the financial circumstances of the spouses. At the onset of the case, each spouse fills out a Financial Information Statement in order to determine the needs of the spouses and the children. The temporary support becomes part of the temporary orders under which the parties live until the divorce is final or further order of the court.

Is Temporary Spousal Support Deductible? No, during the marriage and up until the divorce is final, all salary, wages and most income from separate property is characterized as community income unless a prenup or postnup with a partition agreement is in place. That means that each spouse shares equally in the marital estate’s income. Payment of temporary spousal support is merely an allocation of funds that belong to each of the spouses.

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Contractual Alimony

What is Contractual Alimony?  Contractual alimony is simply a contract made between divorcing spouses as part of a final divorce settlement. It is one of the tools that our attorneys can use to help settle cases.

Is Contractual Alimony Tax Deductible? Contractual alimony was used extensively prior to January 2019 due to the tax benefits offered when a high earner was able to pay (and deduct) alimony payments at the marginal tax rate of the high earner. The lower earner received (and paid tax on) payments at the marginal tax rate of the lower earner. The effect was to create a tax benefit from the difference in the marginal tax rates. Unfortunately, this option is no longer available due to the recent (2018) tax legislation.

How Can I Be Sure that I Will Receive the Contractual Alimony Due to Me? Contractual alimony is not enforceable as a part of the division of the marital estate. If the payor stops making payments, the payee who was to receive the payments would have to sue the payor for breach of contract. Breach of contract is covered by civil contract law.

Is Contractual Alimony Still Useful as an Effective Divorce Solution? Prior to January 2019, we used Contractual Alimony as one of our tools to help our clients achieve a workable solution to dividing their Marital Estate. However, due to the change in tax treatment, it has limited use as an effective divorce solution.

Spousal Maintenance

Who Can Get Spousal Maintenance? In Texas, there is a presumption that spousal maintenance is not warranted unless certain facts and circumstances are presented to the court. That means not every spouse, no matter how long the marriage lasts, is entitled to spousal maintenance. There are many factors that determine whether spousal maintenance is appropriate. Generally, a spouse who has sufficient property, including the spouse’s separate property and the ability, education and earning capacity to meet their minimum reasonable needs will not qualify for spousal maintenance.

Is There a Dollar Limit on Spousal Maintenance?

Spousal maintenance payments (monthly) may not exceed the lesser of $5,000 or twenty percent of the spouse’s average monthly gross income.

Are there other special situations where spousal maintenance would be ordered?

  • If a spouse has a lacks sufficient separate property and income to meet minimum and reasonable needs
  • If a spouse is unable to earn sufficient income to provide for his/her minimum reasonable needs because of an incapacitating physical or mental disability, regardless of the length of the marriage, spousal maintenance could be ordered. Payments could continue as long as the spouse is incapacitated.
  • If a spouse was convicted of Family Violence within two years of the other spouse filing for divorce, maintenance may be ordered regardless of the length of the marriage.
  • If a spouse is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs, regardless of the length of the marriage, spousal maintenance could be ordered.

How can I be sure that I will receive the spousal maintenance that is ordered?

Spousal maintenance is enforceable as part of the division of the marital estate, and the Texas Family Code has additional guidance on how it would be accomplished.  A Writ of Withholding Order can be issued to have the payments automatically deducted from the payor’s earnings.

What if my ex-spouse dies or remarries?

If your ex-spouse dies or remarries, spousal maintenance terminates on the death of either party or on the remarriage of the payee. A court can terminate the spousal maintenance obligation if the payee cohabitates with another person in a permanent place of abode on a continuing basis.

Will I Pay for Spousal Maintenance?

You may be entitled to provide spousal support under certain circumstances. Aside from the other spouse showing a need for financial assistance, other factors below are considered.

Consult with a divorce attorney if you believe you may be entitled to pay spousal support.

  • If your former spouse earns significantly less income and is shown to not have any financial independence post-divorce, you may be entitled to pay spousal support
  • If your spouse shows evidence of factors previously mentioned, you may be required to provide financial support post-divorce
  • Spousal support may no longer be required if the time ordered to pay has passed or if said spouse no longer shows signs of financial co-dependence

How Long Does Spousal Maintenance Last?

Spousal support maximum duration is affected by the length of the marriage unless support is needed as the result of a physical or mental disability. In such cases, spousal support may last as long as the disability continues to prevent the former spouse from earning income that allows financial independence. Spousal maintenance is enforceable as part of the division of the marital estate.

The Texas Family Code has additional guidance on how it would be accomplished.

  • 5 Years: If marriage existed between 10 and 19 years
  • 5 Years: If the other spouse was convicted due to family violence within two years of filing for divorce or during the divorce process
  • 7 Years: if marriage existed between 20 and 29 years
  • 10 Years: if marriage existed for 30 years or more

Our Spousal Support Attorneys in Austin

family law attorney Jimmy Vaught

Attorney Jimmy Vaught

Jimmy Vaught has over 30 years of legal experience in Family Law. As a well-regarded family lawyer, Jimmy Vaught is dedicated to ensuring his clients’ rights are represented and protected.

Divorce and Family Law Attorney Jason Wright

Attorney Jason Wright

Since 2012, Jason Wright has legally represented clients in divorce and family law matters. Jason’s dedication and expertise has made him a family lawyer truly valued by his clients.

Family Law and Divorce Attorney Erin Leake

Attorney Erin Leake

Erin Leake has over 6 years of family law experience with a focus on divorce, child support, and more to ensure you receive the legal representation you need.

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Confidential Consultation

The attorneys at Vaught Law Firm understand the complexities of alimony in Texas and use their extensive legal knowledge to ensure your rights and finances are treated in an equitable manner. We’ll analyze the complexities and factors of potential spousal maintenance in your case to help you find a solution that is equitable for you. Get started by scheduling a consultation or calling us today at 512-342-9980 to get in touch with one of our divorce experts and determine if spousal support is right for you!