Legislative Update 2011 – Family Law
New Family Suit and Divorce Laws
Spousal Maintenance (Spousal Support)
Eligibility:
The Family Code now provides that the court may order spousal maintenance if the spouse needing support lacks sufficient property at the time of divorce to provide for their minimum reasonable needs and either:
(1) the spouse from whom maintenance is sought committed family violence against the spouse or child within the past two years, or
(2) the spouse seeking maintenance:
a) has been married for 10 years and does not have the ability to earn sufficient income to provide for minimum reasonable needs; or
b) is unable to work or provide for herself/himself due to a mental disability; or
c) is the caretaker of a child who has a disability, and that prevents the spouse from earning sufficient income to provide for himself/herself.
Factors to be considered by the court:
The new spousal maintenance laws change some of the factors used in determining maintenance eligibility and amount. In addition to considering the financial resource of the spouse seeking maintenance, the court must now also consider the paying spouse’s ability to provide for the other spouse’s minimum reasonable needs, considering that spouse’s financial resources at the time of divorce.
This section was also amended to expand on the legislature’s definition and consideration of “marital misconduct”. Marital misconduct is a factor in determining spousal maintenance and the code now specifies that it includes “adultery and cruel treatment by either spouse during the marriage.” The new law also requires the court to consider “any history or pattern of family violence.”
Legal presumption:
Section 8.053 of the Texas Family Code creates a legal presumption that a spouse is not entitled to received spousal maintenance unless that spouse can show he or she has tried to support herself/himself. This section was amended to remove this requirement for a spouse with an incapacitating disability or a spouse who had to care for a disabled child.
However, this is now a rebuttable presumption, meaning the spouse contest this presumption for reasons as the court sees fit.
Length of Time that Support can be Ordered
The new laws now consider whether the marriage lasted at least 10, 20, or 30 years. Previously, the court could not order spousal maintenance for longer than 3 years unless the spouse had an incapacitating disability or had to care for a disabled child. Now the court can order support for up to five years:
- No matter how long the marriage lasted if family violence was committed, or
- If the spouses were married for 10 to 20 years, the court may order.
Seven years if: the spouses were married for 20 to 30 years
Ten years if: the spouses were married for over 30 years
**Section 8.055, which relates to the amount of maintenance the court may order. Previously, the court could order up to $2,500 per month or 20% of the spouse’s average monthly gross income, whichever was less.; Now, the court may order up to $5,000 per month or 20% of the spouse’s average monthly gross income. Any disability of the spouse or a child is always considered by the court in determining the amount and duration of the support payments.