Out of the thousands of divorce petitions filed in the State of Texas each year, a great number of them will include a request for spousal maintenance. Spousal maintenance is defined in the Texas Family Code as an award in a divorce suit of periodic payments from the future income of one spouse for the support of the other spouse. Out of those thousands of spousal maintenance requests, the vast majority will be denied. This is because it is Texas makes it very difficult for a spouse to become eligible for spousal maintenance.

Spousal Maintenance is governed by Chapter 8 of the Texas Family Code. To be eligible for spousal maintenance, a spouse must lack sufficient property upon the divorce, including the spouse’s separate property, to provide for the spouse’s minimum reasonable needs. Unfortunately, the Texas Family Code does not give us a definition of the term “minimum reasonable needs,” and it is determined by the Court on a case-by-case basis. The Court also takes into account the property awarded to the spouse in the divorce, including separate property, to determine if there is enough property to satisfy the spouse’s minimum reasonable needs.

However, even if a spouse proves the lack of sufficient property to meet his or her minimum reasonable needs, it does not mean that the spouse is entitled to spousal maintenance. One of the two following situations must also exist for the spouse to qualify:

1. The spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence against the other spouse or the other spouse’s child and the offense within two years before the petition for divorce was filed, or while the divorce is pending; or
2. The spouse seeking maintenance:
   1. is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
   2. has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
   3. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for his or her minimum reasonable needs.

If a request for maintenance is based on 2(b) above, the Court will presume that spousal maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in earning sufficient income to provide for the spouse’s minimum reasonable needs or developing the necessary skills to provide for the spouse’s minimum reasonable needs during a period of separation and during the time a divorce is pending.

If the spouse can meet the strict criteria listed above, the Court will determine the nature, amount, duration and manner of spousal maintenance to be paid. In my next blog post, I will discuss the duration and amount of maintenance a spouse may be entitled to once a Court determines the spouse is eligible, as well as the factors the Court weighs in determining the duration and amount.

If you have more questions about spousal maintenance, or the eligibility to receive spousal maintenance in Texas, contact Gregory S. Beane at VernerBrumley. I can be reached by phone at 214-526-5234 or by email at mailto:[email protected]. VernerBrumley’s principal office is located in Dallas, Texas.