• Beth M. Johnson

Spousal Maintenance and Contractual Alimony --- Which is Right for Your Case?

Updated: Jan 31

A court can order one party to provide periodic financial support for the other after a divorce. Tex. Fam. Code ch. 8 (“Spousal Maintenance”). To be eligible for spousal maintenance, the petitioner must prove that she (1) is a spouse; (2) lacks sufficient property to provide for her minimum reasonable needs; and (3) has met one of the four statutory bases for spousal maintenance: ten-year marriage; family violence; disabled spouse; or disabled child. See Tex. Fam. Code § 8.051; see e.g., Stafford v. Stafford, No. 12-04-00128-CV, 2005 WL 3201894 (Tex. App.—Tyler 2005, no pet.) (mem. op.).

The Texas Family Code places specific limits on how much maintenance can be ordered and for how long. Tex. Fam. Code §§ 8.054, 8.055. Once a court determines that the petitioner is eligible for an award, the court must then determine the amount, duration, and manner. Tex. Fam. Code § 8.052; Limbaugh v. Limbaugh, 71 S.W.3d 1, 12–13 (Tex. App.—Waco 2002, no pet.).

Determining whether a spouse satisfies the statutory requirements is a question of fact and is decided on a case-by-case manner. See e.g., Romero v. Castro, No. 01-19-00785-CV, 2021 WL 3357994 (Tex. App.—Houston [1st Dist.] 2021, no pet. h.) (mem. op.). In Romero, the wife offered evidence that she could not work due to a disability and medications she took for that disability. Id. at *1–*2. Husband countered that the wife was not incapacitated because she could read, drive, and have sex with another man shortly after the parties separated. Id. at *3. After reviewing the evidence, the appellate court found the trial court did not abuse its discretion in determining the wife was entitled to maintenance. Id. at *5.

An award of Chapter 8 spousal maintenance imposes a legal duty on the obligor, as opposed to a debt. See Heller v. Heller, 359 S.W.3d 902, 904 (Tex. App.—Beaumont 2012, no pet). Parties cannot simply agree to Chapter 8 maintenance; the record must contain the statutory findings to support such an award. Id. Contractual alimony, contrarily, creates a debt that can only be enforced as such. Id. If the award exceeds the Family Code’s guidelines of what is allowed for maintenance, it cannot be Chapter 8 maintenance, regardless of the language used in a decree. See Tex. Fam. Code §§ 8.054, 8.055.

When enforcing contractual alimony, the movant must be aware of limitations periods. See Wilson v. Wilson, No. 14-19-00767-CV, 2021 WL 2837293 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (mem. op.). If the movant waits more than four years after a payment is due, she can no longer obtain judgment for that missed payment. Id. at *4.

Because a court lacks authority to modify a property division, the court cannot modify contractual alimony. However, it can modify spousal maintenance. Tex. Fam. Code § 8.057. Nevertheless, evidence must support that a material and substantial change exists and that modification is warranted. See Prevallet v. Prevallet, No. 02-19-00383-CV, 2021 WL 1323431 (Tex. App.—Fort Worth 2021, no pet.) (mem. op.). For example, in Prevallet, the Husband asserted that he could not afford the maintenance any longer, but he failed to put on any actual evidence of his income, so the appellate court affirmed the denial of his requested relief. Id. at *6.

When advising clients, be careful in choosing whether an award should be considered alimony or maintenance. Parties can agree to nearly any amount or duration of contractual alimony, but once that is done, it cannot be modified by the court. If the parties wish for the award to be considered Chapter 8 maintenance, be sure that the record contains evidence to support the court’s finding that the award is proper, and be sure that the award does not exceed the Family Code’s guidelines.

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