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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