“Am I going to have to pay alimony?” and “Can I get alimony?” are two of the first questions I hear in a consultation. Most people expect the answer to turn on who earned more during the marriage. In Texas, that isn’t really how it works.
Court-ordered support between spouses is narrow here by design. The law sets a high bar to qualify, a cap on the amount, and a clock on how long it lasts. It’s one of the first things we sort out in a divorce in Collin, Dallas, or Denton County, because so many other decisions depend on it.
What we’re actually talking about
Texas law calls it spousal maintenance. Texas Family Code section 8.001 defines it as periodic payments from one spouse’s future income to support the other spouse, ordered in a divorce. It’s what most people mean when they say alimony.
It’s separate from child support, which is for the children. It’s also separate from support the spouses agree to on their own terms, sometimes called contractual alimony. Everything below is about what a judge can order when there’s no agreement.
The two-part test to qualify
Under Texas Family Code section 8.051, a court can order maintenance only if the spouse asking for it will lack enough property, once the marriage is dissolved, to cover their minimum reasonable needs. The code doesn’t put a dollar figure on that phrase. It’s a floor, not a lifestyle standard.
That’s the first part. The second part is that at least one of these must also be true:
- The other spouse was convicted of, or received deferred adjudication for, a criminal offense that is also an act of family violence, within two years before the divorce was filed or while it is pending.
- The requesting spouse can’t earn enough to meet their minimum reasonable needs because of an incapacitating physical or mental disability.
- The marriage lasted 10 years or longer, and the requesting spouse lacks the ability to earn enough to meet their minimum reasonable needs.
- The requesting spouse is the custodian of a child of the marriage who needs substantial care because of a physical or mental disability, and that keeps the spouse from earning enough.
Deferred adjudication, in plain terms, is a form of probation where a person pleads guilty or no contest and the court holds off on entering a conviction. For this purpose, the law treats it the same as a conviction.
What isn’t on the list
This is where most people’s situation actually lives. None of these, on its own, qualifies a spouse for court-ordered maintenance in Texas:
- Earning less than the other spouse, even a lot less.
- Having stepped back from a career to raise children or support the other spouse’s work, in a marriage shorter than 10 years.
- Wanting to keep the standard of living the marriage supported.
- An affair or other misconduct that doesn’t meet the family violence standard above.
There’s another hurdle on the 10-year path. Texas Family Code section 8.053 presumes maintenance isn’t warranted unless the requesting spouse has been diligent in earning enough income, or in developing the skills to do so, during the separation and while the divorce is pending. That presumption can be overcome, but it’s the starting point.
The cap on how much
Even when a spouse qualifies, Texas Family Code section 8.055 limits the monthly payment to the lesser of $5,000 or 20 percent of the paying spouse’s average monthly gross income.
Gross income is defined broadly. It includes wages, salary, commissions, overtime, tips and bonuses, interest and dividends, self-employment income, net rental income, and other income actually being received, such as retirement benefits and trust income.
A spouse earning $15,000 a month in gross income faces a ceiling of $3,000 a month. A spouse earning $40,000 a month hits the $5,000 cap, because 20 percent would be $8,000. Almost everyone is surprised by that cap, on both sides of the table.
When the paying spouse owns a business, pinning down gross income is often the hard part. Salary, distributions, and what the company pays on the owner’s behalf all have to be sorted out. Our firm has civil and business counsel in-house, so that work happens on the same case, not through an outside referral.
The clock on how long
Texas Family Code section 8.054 also limits duration. For maintenance based on marriage length or on family violence, the maximums are:
- Married less than 10 years (family violence path only): up to 5 years.
- Married 10 to 20 years: up to 5 years.
- Married 20 to 30 years: up to 7 years.
- Married 30 years or more: up to 10 years.
Those are ceilings, not defaults. The court has to limit maintenance to the shortest reasonable period that lets the receiving spouse earn enough to meet their minimum reasonable needs. The exceptions are a disability, duties caring for an infant or young child of the marriage, or another compelling impediment to earning. Maintenance based on a disability, the spouse’s or a child’s, follows separate duration rules.
When it ends early
Under Texas Family Code section 8.056, the obligation to pay future maintenance ends if either spouse dies or the receiving spouse remarries. A court must also end it, after a hearing, if it finds the receiving spouse is living with a dating or romantic partner in a permanent residence on a continuing basis. Payments that were already due before that point are still owed.
What this means for planning
For most divorcing couples in Texas, court-ordered maintenance is either unavailable or smaller and shorter than expected. That makes the property division and, where there are children, child support carry more of the weight.
You don’t need to know which category you fall into before you call. Sorting that out is what a first meeting is for.
If maintenance is a real question in your divorce, from either side, let’s look at your numbers together.