Articles Posted in Spousal Maintenance

Pre-nuptial agreements, called premarital agreements under Texas law, are frequently in the news and even in pop culture references (shout-out to Kanye West).  You may think that living in Dallas, Kaufman, or Rockwall County that you don’t need to worry about a premarital agreement, but they can be a very valuable tool. No one likes to think about divorce at the beginning of their marriage, but with the amount of marriages that end in divorce it can be extremely helpful to get an agreement in writing ahead of time to make sure that a divorce can be as painless as possible.

What are the requirements for a premarital agreement in Texas?

In Texas, a premarital agreement must be in writing and signed by both parties. It is pretty much that simple. There are many things that may be contracted for in a premarital agreement but one major thing that is NOT allowed to be modified in certain ways in a premarital agreement is child support. You can’t completely get rid of (the statute says, “adversely affect”) child support. It makes sense because it seems like bad policy to have a child suffer because of an agreement of the parties that was possibly made before they were even born.

You are divorced and in your final orders you were awarded spousal maintenance on the basis of your disability and inability to earn sufficient income.  So, you went through all of the stages of proving your disability and proving that you could not earn the money that you need to meet your minimum reasonable needs and the judge ordered that your ex-spouse a certain amount per month to you for a certain period of time.  As you know, spousal maintenance is governed by Chapter 8 of the Family Code and with respect to a disabled spouse, it does state that maintenance can be ordered for as long as the disability persists (longer than the statutorily limited period of time).  If it is nearing the ending date of your receipt of the monthly spousal support payments, you are becoming worried because you do not know what you are going to do at this point.  Can you seek further maintenance from the Court because you are still disabled and need the money to survive?

This question was directly addressed in Stephanie Ann Novick v. Andrew A. Shervin by the Fifth District Court of Appeals in Dallas.  There, the trial court held that the wife was “presently disabled” and ordered that the husband should pay her “$2000 per month for 24 months.”  When the time was drawing near for the husband’s payments to cease, the wife filed a motion to modify to continue the support payments and the trial court dismissed that claim to which the wife appealed.  Therefore, the Dallas Court of Appeals had to determine whether or not the trial court erred in failing to honor the wife’s request in continuing the spousal support payments.  In doing do, the Court reviewed a few other appellate cases involving this particular issue to seek guidance which led the Court to render a bright line rule to determine whether or not the support payments could be continued.

The Court held, “An award of spousal maintenance in a divorce decree is properly the subject of a motion for continuance only if the decree indicates the trial judge intended to make the award pursuant to section 8.054(b) rather than 8.054(a).”  Section 8.054(b) allows a trial court to find the spouse disabled (giving guidance as to how and what it means) and in finding the spouse to be disabled, the trial court will make an award of maintenance.  This award can be made subject to periodic request based upon the request of either party and also subject to a motion to modify.  However, Section 8.504(a)  places a duration limit on how long the court can award the maintenance for (5 years) and states that a trial court must render the shortest period possible unless the spouse’s ability to earn income is totally diminished by physical or mental disability.    The key for this Court was that you can seek continuance of the maintenance if the award was under Section 8.054(b).  An example of this type of award would be where a spouse is found to be permanently disabled, awarded spousal maintenance for longer than 5 years, and the Court also order that the spouse receiving support can seek continuance beyond the court-ordered termination date.

Chapter 8 of the Texas Family Code governs spousal maintenance, Texas’ own form of “alimony”.   Spousal maintenance is not easily obtained by divorcing parties; in fact, the legislature has created a pretty high threshold.  But, the issue becomes what if you have an out of state decree that speaks to spousal support and then you have the spouse ordered to pay subsequently wanting to get out of that arrangement?  This is the exact issue that the Fifth Circuit Court of Appeals addressed in In the Interest of L.T.H., R.R.H., and A.W.H., Minor Children.

In that case, the wife appealed a trial court’s ruling to refuse to enforce a California divorce decree modification and the husband’s obligation to pay spousal support.   In California, husband and wife were divorced, subsequently modified the divorce decree in California with a settlement agreement, and entered a reformed decree.  Then, everyone subsequently moved to Texas.  Later, the wife sought to enforce against the husband several times due to his nonpayment of the spousal support and child support.  After the first enforcement, the parties signed a mediated settlement agreement agreeing to certain terms regarding the spousal support (payment was definitely one of those terms) and then an order was subsequently entered.   The wife had to seek a subsequent enforcement due to the husband not paying again pursuant to the orders and in that case, the trial court ordered that they could not enforce the modification of the California decree and ordered that wife take-nothing.  However, the Court of Appeals thought differently and reversed and remanded ruling that they would strictly comply with the parties’ MSA, uphold the MSA and the parties’ agreement.

The Court of Appeals reviewed this case under contract law, which is sometimes unusual when discussing family law cases.  However, most people forget that every agreement entered into (when the proper elements are present), create a contract between the parties that can be enforceable as such.  The Court of Appeals looked to previous appellate decisions to reach this decision such as Schwartz v. Schwartz which held that “When such an agreement is executed by the parties and incorporated into the judgment of a divorce, it is binding upon the parties, and is interpreted under general contract law.”  Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex. App.—Dallas 2008, no pet.).   Therefore, the Court would not review the MSA under Chapter 8 of the Texas Family Code stating that this was a contract turned into a court order which did not effectively create court ordered maintenance under the Texas Family Code.

Many people avoid getting divorces because they cannot afford to do so.  They know that they depend upon the other spouse’s income in order to continue paying the bills.  You are not alone in wondering how you will be able to afford everything during and after your divorce.  You know you cannot stay married and you know you need financial assistance at least with some of the bills.

Fortunately, Texas does allow for temporary spousal support while your divorce case is pending.  During initial consults with clients, the question always arises on income, who is going to stay in the marital residence, and if financial assistance is needed.  If it is, then clients will complete a financial information sheet for temporary orders hearing purposes which will be filed.  This allows the judge to see your income and expenses, your spouse’s income and expenses, and any expenses associated with the child.  It is basically a breakdown of your household monthly income and expenses so that the judge can determine whether or not you truly have a need and if your spouse has enough income to make up for the deficit.  In most cases, and especially if the spouse has already been doing so, the court will order the spouse to continue paying the bills that they have already been paying after separation and prior to the court date.  For instance, if your spouse has already moved out of the home but they have continued to pay the mortgage after moving out, then we would ask the court to maintain that status quo while the case is pending.

Additionally, if you have a child and you are awarded the exclusive right to designate the primary residence of the child then the other parent will most likely be paying child support.  This is additional assistance for you. If it is only one child, it would be 20% of the other parent’s monthly net resources.  The percentage goes up with the number of children.