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November 20th, 2011 by Robert Franklin, Esq.
The Texas Legislature has amended the state’s law on spousal support and it comes close to doing a fair and reasonable job of the matter.  Here’s a blog posting describing the changes (FindLaw.com, 11/11/11).

I’ve written before that much state law on spousal support is little more than thinly disguised misandry.  The vast majority of alimony obligors are men and the vast majority of obligees are women.  And, if you wanted to devise a scheme to encourage divorce, you couldn’t do much better than, for example Massachusetts alimony law.  But of course the Bay State is far from alone in its apparent desire to punish men and reward women who divorce.

Often, states allow alimony orders to exist indefinitely.  So a man who turns 65 can forget about retiring; he’s got those payments to make.  But doesn’t retirement mean a change in circumstances that would force a downward modification in his obligation?  Not necessarily.  If he’s able to keep earning at the same rate, the court will tell him his changed circumstances are voluntary, so no modification is warranted.

Is the woman capable working and earning?  In many states she need not.  She’s under no obligation to support herself or make much of an effort to do so.  What about educating herself so she can get a job?  She doesn’t have to do that either in many states.  Does she acquire a boyfriend whose income helps support her?  Often that’s deemed irrelevant if she doesn’t actually marry him.

In short, spousal support laws tend to encourage divorce and discourage remarriage.  They also discourage working for a living and encourage goldbricking.  It may sound strange, but those seem to be the policies of many states as revealed by their spousal support laws.  Those laws are artifacts of a view of women as incapable of caring for themselves and, in this day and time should be scrapped wholesale.

Now, I’ve said before that some spousal support is probably necessary.  There are certainly cases in which a spouse is very old or disabled and unable to work.  States rightly don’t want those people left out in the cold and particularly they don’t want them on the public dole.  So I have no problem with modest temporary support post-divorce in cases of need.

The State of Texas has always viewed alimony with a jaundiced eye.  The state’s constitution outlawed it altogether for decades.  So it’s no surprise to see Texas taking the type of sensible approach that other states might want to copy.

There is now a “rebuttable presumption” that spousal maintenance is not needed. A rebuttable presumption is an evidentiary burden that can be overcome (rebutted) if evidence is shown to the contrary. To rebut the presumption, the spouse seeking maintenance must lack sufficient property, including the spouse’s separate property, to provide for the spouse’s minimum reasonable needs.

Additionally, the spouse seeking maintenance must have been a victim of domestic violence within the past 2 years of the filing date of the suit or while the suit is pending or the spouse seeking maintenance is unable to provide for his or her minimum reasonable needs due to a incapacitating physical or mental disability, has been married for 10 years or longer and lacks the ability to earn sufficient income to meet his or her minimum reasonable needs, or is the custodian of a child of the marriage who is disabled and whose care prevents the spouse from earning sufficient income to meet the spouse’s minimum reasonable needs.

A rebuttable presumption against support makes sense.  It places the burden of proving need on the proper party.  The requirements of insufficient property, plus violence, at least 10 years of marriage, plus disability of the spouse or child all make proof of spousal maintenance difficult enough to weed out cases of opportunism.  They also make divorce for the sake of alimony unlikely.

The duration of spousal maintenance is now:

•Five years, increased from three, if the spouse making the payments was convicted of domestic violence, or they were married at least 10 years, but not more than 20.

•Seven years, if they were married between 20 and 20 years

•10 years, if they were married more than 30 years.

The law removes the requirement for “obtaining appropriate employment or developing an appropriate skill” and now ties the duration to “shortest reasonable period” that allows the spouse in need of maintenance to “to earn sufficient income to provide for the spouse’s minimum reasonable needs.”

 Again, there’s nothing too outrageous there.  I’d pare back the duration of payment a bit, but the law clearly requires the obligee to seek and find employment as quickly as possible, so those times are effectively subject to the work requirement.  My guess is that few alimony payments will last the maximum time.

The law also caps the maximum amount that can be paid.

The maximum monthly maintenance has also increased from $2,500 to $5,000. This is the ceiling on the amount of support the obligor (spouse who must pay support) can be ordered to pay. If the obligor’s gross income is less than $5,000 per month, the obligor can only be ordered to pay up to 20 percent of that spouse’s average monthly gross income.

Here are the factors that decide whether a judge grants spousal support or not.

In determining the nature, amount, duration, and manner of periodic payments, the court shall consider all relevant factors, including:

(1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently;

(2) the education and job skills of the spouses;

(3) the length of the marriage;

(4) the age, employment history, earning ability, and health condition of the spouse seeking maintenance;

(5) the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs;

(6) the dissipation of any marital assets;

(7) the financial resources of the spouses;

(8) the contribution by one spouse to the education or earning capacity of the other;

(9) any pre-marital property;

(10) the contribution of a spouse as homemaker;

(11) Any marital misconduct of the spouse seeking maintenance; and

(12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code. (Texas Code – Family Code – Chapters: 8.001-8.055)

Notice, for example, that fault in the divorce plays a part in deciding maintenance.  So if the wife played around on the husband, she may not get alimony.  And it’s not what she earns, but what she can earn that determines whether and what amount she’ll get.  So sitting back and letting hubby support you isn’t favored in Texas.  Interesting too is the fact that, if one spouse decides to divorce and goes out and runs up huge credit card debts that the other spouse gets to help pay, that militates against an award of alimony.

Finally, termination of alimony can happen if the obligee cohabitates with another person or has a dating or romantic relationship with another person.  There’s no need to show she’s actually receiving money from the new guy.

All in all, the Texas system isn’t bad.  It’s far worse in many states, and those states should take a lesson from the Lone Star State.  Encouraging divorce and idleness is in no state’s interest.  They should quit doing it.

 

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