Alimony and Spousal Maintenance (with recent caselaw)

Chapter 8 of the Family Code governs the award of spousal maintenance in a divorce decree. Tex. Fam Code §§ 8.001-8.359; see also Dalton v. Dalton, 551 S.W.3d 126, 131 (Tex. 2018). The Family Code defines “maintenance” as “an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.” Tex. Fam Code Ann. § 8.001(1).

Typically, to be eligible for (not entitled to) spousal maintenance, the spouse seeking maintenance must show (1) that she lacks sufficient property to meet her minimum reasonable needs and (2) one of the following: (A) an incapacitating physical or mental disability prevents the ability to provide for her minimum reasonable needs, (B) the parties were married for at least 10 years; or (C) the need to provide substantial care for a child of the marriage due to a physical or mental disability prevents the ability to provide for her minimum reasonable needs. Tex. Fam. Code § 8.051(2). There is also a provision involving family violence, which still requires a showing of an inability to meet minimum reasonable needs. Tex. Fam. Code § 8.051(1).

Because the statute merely provides the circumstances under which a party is eligible for (not entitled to) spousal maintenance, the issue is reviewed under an abuse of discretion standard. If a spouse is ineligible, an appeal will likely be successful to reverse a maintenance award. However, if a spouse is eligible, an appeal from either the obligor or obligee is unlikely to be successful when reviewed under an abuse-of-discretion standard. So, if the party seeking maintenance is eligible, the likelihood of getting an order for maintenance often comes down to the likability of the parties and how they present themselves on the witness stand. And, an appellate court is highly unlikely to second guess that decision, regardless of how the dice fall. This reality should be conveyed to clients before they ever enter a courtroom if this issue is to be presented to a court.

If a spouse is seeking maintenance based on a 10-year marriage, courts apply a presumption against maintenance unless the spouse seeking maintenance has exercised diligence in earning sufficient income or developing the necessary skills to meet their minimum reasonable needs. Tex. Fam. Code § 8.053(a); Douglas v. Douglas, No. 07-25-00138-CV, 2026 WL 191578, at 2 (Tex. App.—Amarillo 2026, no pet.). This presumption against maintenance does not apply when the spouse is relying on their own or their child’s disability to support eligibility for maintenance. See Tex. Fam. Code §§ 8.051, 8.053(a). If a spouse relies on the length of marriage for their eligibility for maintenance, the spouse need not also prove the existence of a disability. Tex. Fam. Code § 8.051(2); Mancha v. Mancha, No. 11-25-00167-CV, 2026 WL 59369, at 7 (Tex. App.—Eastland 2026, no pet.) (mem. op.). The Family Code does not require expert testimony to prove an incapacitating physical or mental disability. Mancha, 2026 WL 59369, at *6 (citing Kelly v. Kelly, 634 S.W.3d 335, 367 (Tex. App.—Houston [1st Dist.] 2021, no pet.).

The purpose of spousal maintenance is to provide temporary rehabilitative support for a spouse whose ability to support herself has eroded over time while engaged in homemaking activities and whose capital assets are insufficient to provide support. Mehta v. Mehta, 716 S.W.3d 126, 133 (Tex. 2025). What constitutes minimum reasonable needs must be decided on a case-by-case basis. Id. at 132. A spouse does not need to spend down long-term assets, liquidate all available assets, or incur new debt simply to obtain job skills and meet short-term needs. Id. Assets that cannot be accessed “immediately and without consequence” should not be considered when determining whether a spouse has sufficient property to meet her minimum reasonable needs. In re Marriage of Willis, No. 06-25-00007-CV, 2025 WL 2433204, at *8 (Tex. App.—Texarkana 2025, pet. denied) (mem. op.) (citing Sherman v. Sherman, 650 S.W.3d 897, 901 (Tex. App.—Fort Worth 2022, no pet.); see also Dominguez v. Dominguez, No. 11-24-00191, 2026 WL 958192 (Tex. App.—Eastland 2026, pet. denied) (mem. op.).

Chapter 8 provides specific terms for the duration, amount, modification, and enforcement of an order for spousal maintenance. Tex. Fam. Code §§ 8.053–8.059. Section 8.052 sets out non-exhaustive factors to consider in determining whether a spouse is eligible for  maintenance. Tex. Fam. Code § 8.052. Parties cannot simply agree in a divorce decree to make a monetary obligation Chapter 8 spousal maintenance. In re C.A.B., No. 05-24-01372-CV, 2026 WL 2628360, at 5 (Tex. App.—Dallas 2026, no pet. h.) (mem. op.); White v. White, 736 S.W.3d 919, 925–26 (Tex. App.—Tyler 2026, no pet.). If parties wish to make an obligation enforceable and modifiable pursuant to Chapter 8, the provisions for maintenance must comply with Chapter’s 8’s evidentiary requirements (i.e., necessary findings should be made based on admitted evidence) and the award must not exceed the restrictions on duration and amount. See e.g., C.A.B., 2026 WL 2628360, at 5. Otherwise, the agreement of one spouse to voluntarily pay money to the other spouse is governed by Chapter 7. See White, 736 S.W.3d at 924–25; see also In re Trumble, No. 06-26-00087-CV, 2026 WL 3031549 (Tex. App.—Texarkana 2026, orig. proceeding) (mem. op.).

Agreements Incident to Divorce

In C.A.B., the husband sought to terminate maintenance under Chapter 8. 2026 WL 2628360, at 1. However, the parties’ decree recited that they had entered into an agreement that was enforceable as a contract. 2026 WL 2628360, at 5. The decree included no findings regarding eligibility for Chapter 8 maintenance. Id. And, the decree failed to comply with the amount and duration limitations of the Family Code. Id. Thus, the obligation could not be terminated because it was simply a contractual obligation and was not modifiable Chapter 8 maintenance. Id. at *8

In White, the wife sought to enforce a provision for “spousal maintenance” by contempt. 736 S.W.3d at 921. However, the parties’ decision to call the obligation “spousal maintenance” did not make it so. Id. at 925. “Chapter 8’s enforcement provisions apply only to spousal-maintenance orders that a court enters ‘on the authority’ of Chapter 8 and that meet that chapter’s ‘other requirements.’” Id. (citing Dalton, 551 S.W.3d at 131). Parties cannot agree to “Chapter 8 maintenance” that exceeds the amount or duration permitted by that Chapter. Id.

Contempt

In Trumble, a wife attempted to hold the husband in contempt for failing to pay for her health insurance as agreed in the parties’ decree of divorce. 2026 WL 3031594, at 1. Although the wife acknowledged the requirement to pay health insurance was not spousal maintenance, she argued it was a “performance obligation” for which the husband could be held in contempt. Id. at 3. However, because the obligation was a voluntary support obligation under Chapter 7, it was a debt and not enforceable by contempt. Id.

Due Diligence

In Dominguez, without citing any legal authority for his argument, the husband argued that the wife’s potential ability to receive disability assistance should have been considered in determining whether she could meet her minimum reasonable needs. 2026 WL 958192, at 9. However, contrary to his apparent assertion, the due-diligence presumption does not apply when maintenance is based on a disability. See Tex. Fam. Code § 8.053(a). The trial court was not required to determine whether the wife could potentially provide for her minimum reasonable needs in the future but whether she could provide those needs “upon the dissolution of marriage.” Dominguez, 2026 WL 958192, at 9 (citing Tex. Fam. Code § 8.051). Moreover, the court included provisions allowing the husband to reduce his obligation if Wife began receiving disability payments. Id.

In Douglas, the appellate court reversed an award for spousal maintenance based on the length of marriage (Section 8.051(2)(B)) because the receiving spouse (the wife) failed to establish she exercised reasonable due diligence in providing for her minimum reasonable needs. 2026 WL 191578, at 4. The wife claimed she needed to be able to relocate to California to be able to find employment as an elementary school teacher. Id. at 3. However, she did not present evidence she had proper credentials to teach in California. Id. She offered no evidence of job applications or rejections. Id. She claimed she could not pass a background check due to a no-billed assault charge. Id. However, she offered no evidence to establish that she lost her certification to teach based on that charge. Id. The trial court had noted only certain felony convictions required revocation of a teaching certificate. Id. Instead of seeking employment as a substitute teacher, the wife chose to work in the laundry business earning $400 a month. Id. at *4. The wife also misstated her minimum reasonable needs by including the mortgage on the marital residence despite the order for her to vacate that residence and by including a student loan payment despite the payments being deferred. Id.

In Mancha, the court found the wife did establish due diligence in providing for her minimum reasonable needs. 2026 WL 59369, at 7. The husband asserted that the wife’s decision to work part-time was due to laziness and should have precluded her eligibility for maintenance. Id. at 6. However, the wife cared for her grandchildren and suffered from health issues that prevented her from working full time. Id. Although the trial court did not find the wife suffered from an incapacitating disability, the court could have considered that wife’s health challenges limited her ability to earn sufficient income to meet her minimum reasonable needs. Id. Even if the wife had worked full-time, her income would not have been sufficient to meet her minimum reasonable needs. Id. The wife’s only source of income was a children’s entertainment business in the mall, which was necessarily restricted by the mall’s operating hours. Id. at 1. She also owned a jewelry and crafts business with her oldest daughter, but the proceeds from that venture whet to her granddaughter. Id. Because the wife was unable to work at the mall business full-time, she paid a co-worker to manage day-to-day operations in her absence. Id. The trial court did not abuse its discretion in finding the wife exercised due diligence in providing for her minimum reasonable needs. Id. at 7.

Periodic Reviews and Modification

Section 8.054(c) allows for periodic reviews of the order on request of the party or on the court’s own motion to determine whether a disability still supports the award. Tex. Fam. Code § 8.054(c). Additionally, the parties can seek a modification of the award if there has been a material and substantial change in circumstances. Tex. Fam. Code § 8.057(c). A trial court may preemptively state that no “periodic review” will occur within a certain timeframe, but that restriction would not disallow a suit for modification if a material and substantial change existed. Dominguez, 2026 WL 958192, at *12.

Consideration of Marital Agreements

While a premarital agreement likely precludes reimbursement claims (depending on the terms of the agreement), it may not necessarily preclude a claim for spousal maintenance if the statutory requirements are established. See Hutcherson v. Hutcherson, 731 S.W.3d 946, 965–67 (Tex. App.—Austin 2026, no pet.). In Hutcherson, the appellate court reversed awards for reimbursement and reconstitution because the parties’ agreement explicitly described how the parties’ community estate was to be divided. Id. at 261–62. However, the court affirmed a spousal maintenance award because the wife presented sufficient evidence to support a finding she lacked the resources to meet her minimum reasonable needs, and the award was consistent with requirements and limitations of Chapter 8. Id. at 965–67.