Texas Divorce Attorney Blog
Trial courts are permitted to award Texas spousal maintenance in only limited circumstances. If the spouse meets the eligibility requirements for maintenance, the court must consider a number of factors to determine the nature, amount, and duration. Tex. Fam. Code § 8.052. Spousal maintenance is limited to the lesser of $5,000.00 or 20% of the spouse’s average monthly gross income. Certain items are excluded from “gross income,” including service-connected Veterans Affairs disability payments, supplemental security income (“SSI”), social security benefits, or disability benefits. Tex. Fam. Code § 8.055. A husband recently challenged an order requiring him to pay spousal maintenance.
Wife Seeks Spousal Maintenance
According to the appeals court’s opinion, the parties got married in 2006 and the wife filed for divorce in 2019. The wife sought spousal maintenance pursuant to Chapter 8 of the Texas Family Code and based on “contractual alimony.” She testified she was unable to work due to medical issues. She said she lived with her daughter and did not have any income.
The wife testified the husband received $3,809.02 monthly from the Department of Veterans Affairs (“VA”) and $816 per month in social security. She also testified that he also earned income by performing in a band. She said he was paid under the table and was unable to estimate how much he earned.
A letter dated May 12, 2019 and signed by the husband was admitted into evidence. The husband promised in the letter to pay the wife $760 in monthly alimony for the remainder of her life. He paid her at least that amount for 17 months, and sometimes paid more. He stopped making the monthly payments in October 2020.
The husband testified he received VA disability and social security payments monthly. He testified he averaged “between $100 and $200” per musical performance. He testified performing was really more of a hobby. It was sporadic and he incurred expenses, including travel. He said he was lucky just to “break even.” He testified he had no other income. He acknowledged making payments to the wife from June 2019 to October 2020, but said he did so “out of fear” because he had promised to do so in the letter.
The wife argued the letter constituted a contract and asked the court to hold the husband to it. She also argued she met the requirements for spousal maintenance under Chapter 8 because she was disable and her income did not meet her minimum reasonable needs.
The husband argued the letter was not supported by consideration and it had not been signed by the wife. He also argued his income from the VA and social security could not be considered in determining maintenance pursuant to Chapter 8, and his income from performing as a musician was insignificant.
In the final divorce decree, the trial court ordered the husband to pay $540 in monthly spousal maintenance for five years. The decree stated that he was “ordered to pay maintenance under Chapter 8 of the Family Code and also as contractual alimony.”
The Husband’s Appeal
The husband appealed, arguing the trial court abused its discretion in ordering him to pay spousal maintenance.
The trial court could not consider the husband’s VA disability and social security income in determining the amount of spousal maintenance. The trial court was only allowed to consider the income from his performances, but this income did not equal $2,700, which would be the amount needed to support an award of $540. Chapter 8 does not allow maintenance of more than 20% of the spouse’s average monthly gross income. There was no evidence that the husband’s income was sufficient for the award. The trial court abused its discretion in ordering him to pay $540 per month pursuant to Chapter 8.
To receive spousal support under Chapter 8, a spouse must meet the eligibility requirements. Parties may, however, agree to contractual spousal maintenance to which Chapter 8 does not apply. If a divorce decree incorporates an agreement for spousal maintenance, it must strictly comply with the agreement and may not add or remove material terms. Chisolm v. Chisholm.
The appeals court also concluded that the order was not in strict compliance with the terms of the alleged agreement. The wife argued the husband had agreed to pay maintenance of $760 per month for the rest of her life, but the court ordered only $540 per month for 5 years. This would be an impermissible alteration of the terms of the alleged agreement. The appeals court concluded the trial court also abused its discretion by ordering the husband to pay $540 in monthly maintenance as contractual alimony, without concluded whether or not the letter actually constituted a valid agreement.
The appeals court concluded the maintenance award was arbitrary and reversed that part of the decree and remanded the case to the trial court for a new trial on the maintenance issue.
Contact an Experienced Texas Alimony Attorney
Whether you are seeking or opposing maintenance, a skilled Dallas spousal maintenance lawyer can help. Set up a consultation with McClure Law Group by calling our office at 214.692.8200.