Spousal Maintenance / Spousal Support

Who is Entitled to Spousal Maintenance?

Generally, a party is legally entitled to statutory spousal maintenance (also known as alimony or spousal support) only under the following circumstances:

1. the payor committed an act of family violence within 2 years of the divorce or while the divorce is pending; or
2. the marriage was 10 years or longer AND the spouse seeking maintenance is unable to support himself/herself due to disability, taking care of a disabled child, OR clearly lacks income earning ability.

What does the Court Consider in Ordering Spousal Maintenance?

If either of these situations apply, then the court is required to consider a number of non-exhaustive factors in determining the amount of spousal maintenance and the duration of the spousal maintenance order - factors such as the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the length of the marriage, age, employment history and earning ability of the spouse seeking maintenance, the comparative financial resources of the spouses, etc.  The list of non-exhaustive factors that the court considers can be found in the Texas Family Code, Chapter 8, Section 8.052. 

How Much Spousal Maintenance can be Ordered?

Spousal maintenance order must be the lesser of $2,500 per month or 20 percent of the payor’s average monthly gross income.   Regardless of the amount actually ordered, the spouse seeking spousal maintenance must still prove his/her minimum reasonable needs (e.g., house, car, utilities, groceries, other living expenses) to support the maintenance order.

How Long Can Spousal Maintenance be Ordered?

No more than 3 years after the date of the order, but a shorter period can be ordered depending on the evidence that is shown to the court regarding the amount of time it will take the spouse who is seeking spousal maintenance to obtain employment or develop an appropriate skill to obtain employment to meet his/her minimum reasonable needs.    With that said, spousal maintenance can also end when either party dies, the spouse receiving the maintenance remarries or cohabits with another person on a continuing basis.   (Cohabitation sufficient to terminate a spousal maintenance order is a fact-specific inquiry.) 

Is Contempt available for Violation of a Spousal Maintenance Order?

Only spousal maintenance awarded under the Family Code - known as statutory spousal maintenance - can be enforced by a contempt action (i.e., imprisonment after being found in contempt of the court's orders at a hearing.)  Drafting the statutory spousal maintenance order is very important -  the order must be very specific on the dates and amounts of support payments and the type of enforcement that can be pursued in case of non-payment.  A contempt action cannot be used to enforce the payment of contractual spousal maintenance.   The Texas Attorney General also has the authority to withhold wages for statutory spousal maintenance. 

Contact us at (713) 493-7544 or via email through our website at www.rendonpeterson.com if you need representation regarding spousal maintenance, enforcement of an order, or modification of a spousal maintenance order.

Co-Habitation Agreements

Who should have a co-habitation agreement?

Co-habitation agreements are recommended for individuals in a relationship who live together but are not legally married, either by choice or because the law currently does not recognize same-sex marriage.

What is a co-habitation agreement? 

Co-habitation agreements are legally binding contracts that can protect both parties and help to create certainty in financial and property aspects of the relationship the event of a break-up.   

We have an "understanding" - isn't this enough?

Having an "understanding" or oral agreement about finances or property does not offer any certainty or protection. First, the agreement must be in writing and signed by both parties to even be considered by a court.  Second, unlike in the situation of a divorce, the law provides very limited protections for the financial rights of unmarried parties who co-habitate if the relationship ends.   Without a written agreement, at most, the law only recognizes the right of the parties to partition any jointly-owned property.  Generally, the law does not recognize any legal right to financial support for a party following the end of the relationship and co-habitation.   Absent extenuating circumstances (this is a very case-specific inquiry), it is immaterial that the economic situation of one party may be markedly different from that of the other party; nor is it material that one party may have relied on the benefits of the other party's economic status and earnings during the course of the relationship and co-habitation.

What can a co-habitation agreement address?

Co-habitation agreements can provide for matters such as the division of property, lump-sum payment, periodic payments, for a party to have a reasonable opportunity to find alternative housing and temporary financial support following the break-up, and any other legal matter. The agreement can also address the end of the relationship due to death of a party (a Last Testament and Will is highly recommended as well!)

Contact us at (713) 493-7544 or via email through our website at www.rendonpeterson.com if you want to learn more about co-habitation agreements, want a co-habitation agreement prepared, or want to modify an existing agreement.    

Summer Possession - Standard Possession Order

The deadlines for designating extended summer possession and weekend possession under a "Standard Possession Order" are fast approaching!  

April 1st:  Parent without the right to designate the child's primary residence ("non-primary parent")

April 15th:  Parent with the right to designate the child's primary residence ("primary parent")

What is extended summer possession?        

Under the "Standard Possession Order" the non-primary parent has extended summer possession for 30 days (if that parent lives within 100 miles of the child’s primary residence) or for 42 days (if that parent lives more than 100 miles away from the child’s primary residence).  NOTE:  This extended summer possession MUST be exercised in no more than 2 separate periods of NO LESS THAN 7 CONSECUTIVE DAYS each.   This extended summer possession is in addition to the non-primary parent's standard first, third and fifth weekend periods of possession.   

What happens if the non-primary parent forgets to give notice by April 1st?

If the non-primary parent fails to give WRITTEN notice of the extended summer possession dates by April 1, then extended summer possession will begin at 6 pm on July 1 and end a 6 pm on July 31 (June 15^th to July 27^th for parents who reside more than 100 miles from the child’s primary residence). 

Is an email sufficient "written notice"?

"Written notice" can be an email, a postcard, formal letter,  written on a napkin, etc.  You get the idea - something you can show the judge, if necessary, and avoid  "he said/she said"  disputes.  Keep a copy of your written notice.   I repeat - Keep a copy of your written notice.   You may need it if there is any dispute regarding the days the non-primary parent selected for the extended summer possession.

What about the primary parent's rights during extended summer possession?

The parent with the right to designate the child's primary residence can designate 1 weekend during the non-primary parent’s extended summer possession during which that parent will have possession of the child.  However, the primary parent MUST give the other parent written notice of their weekend by April 15.  If no notice is given, then the non-primary attorney will have uninterrupted period(s) of extended visitation.   The primary parent can also, with 14-days written notice, designate a weekend outside the non-primary parent's 30 day summer visitation period.   Note:  The weekend(s) cannot interfere with Father’s Day (if the father is the non-primary parent) or with  the non-primary parent’s extended summer possession.   

As always, check the specific language in your divorce decree.

Contact us at (713) 493-7544 or via email through our website at www.rendonpeterson.com if you would like to discuss the specifics of your case.