Family lawyers should consider making spousal maintenance claims in a much wider range of situations under the new statutes.


Richard R. Orsinger

Family Lawyer — Texas

In 2011, the Legislature amended the complicated post-divorce spousal maintenance statute, doubling the numerical cap on the spousal maintenance that judges may award and significantly increasing the maximum number of years of the award.

Previously, the court can award maintenance where the marriage lasted at least 10 years and the spouse seeking maintenance lacks sufficient property to provide for his or her minimum reasonable needs. The spouse is deemed unable to provide for his or her own personal needs if a) he or she has an incapacitating physical or mental disability; b) cannot earn sufficient income to meet those needs; or b) is the custodian of a child of the marriage who requires substantial care and personal supervision due to a physical or mental disability. However, §8.052, which contains a non-exclusive list of factors for determining maintenance, has been substantially altered.

Instead of comparing the spouses' relative financial resources, under changes to Provision Nos. 1, 5 and 7, the court must now compare the ability of each spouse to meet his or her own minimum reasonable needs. Provision No. 12, regarding the efforts of "the spouse seeking maintenance to pursue available employment counseling," was deleted. Furthermore, a new provision, No. 11, allows the court to consider "any history or pattern of family violence."

Where the basis for maintenance is that the marriage lasted 10 years or more and the spouse seeking maintenance lacks property and income sufficient to meet minimum reasonable needs (as opposed to family violence or disability), then §8.053 establishes a new presumption that maintenance is not warranted. But a lawyer can rebut the presumption by showing that the spouse seeking maintenance exercised diligence in earning sufficient income to provide for those needs or in developing the skills necessary to do so.

Under the new §8.054, the maximum term of court-ordered maintenance is increased from five to seven years, depending on the length of the marriage. The court must limit the duration to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for his or her minimum reasonable needs, unless the award is based on disability, duties as custodian of an infant or young child of the marriage or other compelling impediment. Periodic review is available.

Under §8.055, maintenance is capped at the lesser of $5,000 a month or 20 percent of the paying spouse's gross income, as that term is defined in the statute — substantially higher than the maximum of $2,500 a month allowed under the previous legislation. Also included in the legislation for the first time is a list of what is included in "gross income."

The recent amendments make spousal maintenance a more significant consideration in a Texas divorce concerning marriages that last 10 years or longer.

Conditioning maintenance on the inability to meet "minimum reasonable needs" sounds like a significant limitation, but the term is not defined and could vary widely in application, especially if the court considers the cost of day care for children and the cost of a spouse's private medical insurance or uninsured medical status.

There is no fixed time limit for maintenance where a spouse suffers a physical or mental disability, which case law says can be proved by a spouse's testimony alone, without the support of medical or psychological expert opinion. And a trial court's award of maintenance can be overturned on appeal only for an abuse of discretion.

The broad discretion afforded trial judges will lead to outcomes that vary widely from case to case and from court to court, and which are not susceptible to easy reversal on appeal. Family lawyers should consider making spousal maintenance claims in a much wider range of situations under the new statutes.

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Richard R. Orsinger is a partner in the Dallas and San Antonio offices of McCurley Orsinger McCurley Nelson & Downing. He is board certified in family law and civil appellate law by the Texas Board of Legal Specialization.