Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Attorneys Law Firm : TX Child Support & Custody Issues

Posted by Michelle May O'Neil on May 2, 2011

Until recent years, Texas did not allow for the payment of alimony and, even now, it is available in extremely limited circumstances and limited duration.

A spouse can be awarded alimony/maintenance under the Texas Family Code only if one of two specific conditions exists.

The first is if the other spouse was convicted of a crime involving family violence within the two years prior to the filing of the divorce suit.  This includes class C misdemeanor convictions if the allegation involved family violence.  It also includes occasions where the defendant received deferred adjudication in exchange for a plea of guilty.

The other starts with a 10-year marriage, where the spouse seeking maintenance lacks sufficient property (including property awarded in the divorce) to provide for his or her minimum reasonable needs.  If that factor exists, then, the inquiry turns to whether the spouse can or cannot work outside the home because he/she has an incapacitating personal physical or mental disability; or, he/she is the primary caregiver of a child requiring substantial care due to a physical or mental disability; or the spouse clearly lacks adequate skills to find a job to support minimum reasonable needs.

Most alimony claims rely on the second of the conditions.  But for the request to be successful, the spouse must be able to show a reasonable attempt to find an appropriate job or get job training.

Judges are further limited in the right to award maintenance by state law that says support can continue for no longer than necessary to provide for the spouse's needs, but no more than three years after the divorce is finalized.  The exception to this rule is when the maintenance is awarded based on a disability of either the spouse receiving maintenance or caring for a disabled child, in which case the award may be indefinite in duration.  Also, monthly payment amount is limited to either $2,500 or 20 percent of the paying spouse's average gross income - whichever amount is lower. 

If this post was helpful, you may be interested in purchasing our book, Basics of Texas Divorce Law which includes several other topics you may want to know more about such as, the divorce proceeding, division of property and issues related to children.

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Dallas divorce attorney Michelle May O’Neil and her client prevailed yesterday, February 4, 2010, when the Fifth Court of Appeals issued its opinion in Kee v. Kee, Cause No. 05-08-00013-CV. The appeal in Kee arose from an ex-wife’s appeal of the trial court’s refusal to garnish ex-husband’s wages to satisfy his contractual alimony obligation.  The trial court in this case rightfully found the garnishment that ex-wife requested would violate ex-husband’s constitutional rights. The Dallas Court of Appeals agreed.

The Court of Appeal’s determination turned on whether the alimony payments wife sought to garnish from husband’s wages were ordered pursuant to Chapter 8 of the Texas Family Code, or whether such payments were contractual, as opposed to statutory, alimony. In reaching its decision, the Court of Appeals closely examined the language of the 2006 divorce decree’s alimony provision. The decree lacked the requisite findings for Chapter 8 maintenance; including a finding that wife was disabled and a stated duration of the maintenance obligation, with the specific language of the alimony provision providing in part:

“The Court finds that under the circumstances presented in this case, [Wife] is eligible for maintenance under the provisions of [the] Texas Family Code and the contractual agreement of the parties; and that this alimony obligation is contractual as well as statutory.”

Because the decree omitted the specific findings required by Chapter 8 of the Texas Family Code, the Court of Appeals determined that the “statutory” portion of the maintenance obligation could just as easily be Chapter 7 (the code’s provision for informal settlement agreements between parties) as Chapter 8 maintenance. As the alimony ordered by the 2006 decree was contractual rather than statutory under Chapter 8 of the Texas Family Code, the Court of Appeals determined that husband’s wages were not subject to garnishment, and, therefore the trial court ruled correctly.

The opinion in Kee extends the well-established case law prohibiting the enforcement of contractual alimony by contempt, including In re Green and McCollough v. McCollough, to prohibit enforcement of contractual alimony via garnishment of the obligor spouse’s wages absent a specific provision in the decree allowing for such a remedy. The moral of this case, for parties as well as family law attorneys, is be conscious of your drafting – if you intend for a maintenance obligation to be statutory under Chapter 8 of the Texas Family Code, make sure the decree includes the necessary findings. Also, if you intend for contractual alimony to be enforceable via garnishment of the obligor spouse’s wages, this must also be apparent from the terms of the decree.

Congratulations to Michelle May O’Neil on a notable appellate victory for her client.

For more information on alimony in Texas read our prior blog posts:

Alimony in Texas?!? Well, sort of . . .

Alimony in Texas?!? [Part 2 of 2]

To read articles written by Michelle May O'Neil on the topic of alimony/maintenance in Texas:

Comment: Alimony Versus Maintenance

Alimony/Maintenance Enforcement by Contempt
 

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In my previous post about spousal maintenance I discussed eligibility requirements.  In this post, I'll address the various methods of collecting and enforcing spousal maintenance awards.

If the court grants an award for spousal maintenance, the judgment dissolving the marriage must reflect this.  The spousal support order should state who will receive the payments and who will make the payments.  Tex. Fam. Code Sect. 8.001(3)(4).  The order must state how the spousal maintenance payments are to be made (i.e., by cash, check, and how frequently) and where they are to be sent.  Tex. Fam. Code Sect. 8.052.  Finally, the spousal maintenance order must state the duration of the maintenance.  Tex. Fam. Code Sect. 8.052. 

To aid in the collection of spousal maintenance, the court has discretion to order wage withholding (withholding automatically occurs for child support).  Wage withholding can be accomplished through (1) a wage withholding order; (2) a voluntary writ of withholding; or (3) a writ of withholding.  Tex. Fam. Code Sect. 8.101(a) & 8.251(a).  

For court ordered wage withholding, the wage withholding order must contain the style and cause number of the dissolution suit; the obligor and obligee's names; the amount and duration of the spousal maintenance payments; a directive to the obligor's employer to withhold from the obligor's disposable earnings; a requirement that the obligor notify the court of any change in address or employer.  Tex. Fam. Code Sect. 8.152(a) & (b).

A writ of withholding is used if when the court ordered spousal maintenance it did not issue a withholding order.  Tex. Fam. Code Sect. 8.251(a).  A writ of withholding is different from a withholding order because it must be issued by the court clerk, not the judge.  In order to obtain a writ of withholding, there are three steps:  (1) the obligee must file notice of application for applying for the writ with the court; (2) the obligee must provide this notice to the obligor; and (3) upon the obligor's receipt of the notice, the obligor can either choose whether or not to challenge the notice.  The notice of a writ of withholding must contain: (1) the amount of monthly maintenance due; (2) that the order applied to each current or future employer or period of employment for the duration of the order; (3) that the obligor's employer will be notified to begin the withholding if the obligor does not contest the notice within ten days of receiving it; (4) the procedures for contesting the notice of application; (5)  that the only grounds for successfully contesting a writ of withholding are a dispute about the obligor's identity or about the existence or amount of any arrearages; and (6) that if the obligor contests the withholding, the obligor will be given an opportunity for a hearing within 30 days after the notice is received.  Tex. Fam. Code Sect. 8.252. 

Finally, an obligor can request a voluntary writ of withholding even though a withholding order or writ of withholding has not been served on any party.  Tex. Fam. Code Sect. 8.108(a).  The request must be signed by both the obligor and obligee and be notarized.  Id.  Once the request has been filed, the clerk must deliver a writ of withholding to the obligor's employer.  Tex. Fam. Code Sect. 8.108(b).

Sounds confusing?  Well, unfortunately it is.  The good news is by taking the first step and trying to learn about spousal maintenance in Texas you have a leg up on your opponent.  The next step is to hire a Dallas divorce attorney who is compassionate and relentless about your case from beginning to end.

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One of the questions we are frequently asked is whether Texas allows alimony.  Before going into the substance of this question, it is important to note that the Texas Family Code calls 'alimony' spousal maintenance.  Given the frequency of this question, I'm going to break the answer up into a two part mini-series.

Spousal maintenance is available in certain very limited circumstances.  Under Chapter 8 of the Texas Family Code, spousal maintenance is available for:

• spouses of long-term marriages that lack sufficient property to meet his or her reasonable needs, and cannot support themselves because of his or her disability, a child of the marriage's disability, or his or her lack of earning capacity; OR
• The spouse of a convicted spouse for a criminal offense that constituted an act of family violence.

Tex. Fam. Code Sects. 8.051(1) - (2).  Courts have held that the spousal maintenance provisions under Chapter 8 of the Texas Family Code were promulgated to provide temporary and rehabilitative support for a spouse after the dissolution of a marriage.  Although the spousal maintenance provisions were first enacted in 1995 to protect long-term homemakers, over the past 14 years they have been expanded greatly.  Notwithstanding this expansion there are significant obstacles that present themselves along the way to awarding spousal maintenance.

Even if the court orders spousal maintenance there are a litany of factors the court must then consider in determining the amount to order.  These factors (in no particular order) include: 

• The seeking spouse's financial resources;
• The financial resources of the spouse from whom maintenance is sought;
• The relative financial resources of both spouses;
• The spouses' contributions to each others earning capacity;
• The amount and value of the separate property brought into the marriage;
• The duration of marriage (in excess to the required 10 year duration if maintenance is not sought under the family violence qualification);
• The age, employment history, earning capacity, and physical/emotional health of the spouse seeking maintenance;
• Whether the parties committed any marital misconduct (i.e. extramarital affairs);
• The contributions as a homemaker by the spouse seeking maintenance; and
• The education and employment skills of both spouses.

There is a final hurdle that has to be cleared on the road to spousal maintenance -- the duration of the award.  As a general rule, courts cannot order spousal maintenance for more than three years.  Tex. Fam. Code Sect. 8.054(a).  Additionally, spousal maintenance must be limited to the shortest reasonable period.  Thus, spousal maintenance could be ordered for a year in duration.  Like most rules of law, there is an exception to this.  The duration of spousal maintenance can exceed three years if the spouse seeking maintenance is unable to support him or herself because of a physical or mental disability; or is the custodian of a child of marriage who has a physical or mental disability.  Id. at Sect. 8.054(b). 

As a Dallas divorce lawyer, I frequently encounter individuals who are either completely unaware or misinformed about the spousal maintenance provisions.  If you believe you fall into either of the scenarios where spousal maintenance is available, please don't hesitate to contact our office.

In the next part of this mini-series I'll address enforcement and collection of spousal maintenance awards.

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