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Expansion of Texas spousal maintenance law

By E. Stephanie Hebert | 802nd Mission Support Group/Judge Advocate | March 15, 2013

JOINT BASE SAN ANTONIO-LACKLAND, Texas — Spouses and former spouses seeking financial support from Airmen should seek a court order for spousal maintenance if they want to ensure that financial support will be received during and after a divorce.

Air Force Instruction 36-2906 requires Airmen to provide "adequate financial support to family members," but does not require a specific amount of support and does not require that support to be paid to a spouse after divorce.

The instruction further states that unit commanders have no authority to arbitrate disputed cases of non-support.

In 2011, the Texas Legislature expanded Chapter 8 of the Texas Family Code by increasing the amount of post-divorce support that a spouse may be entitled to receive from the other spouse and extending the length of time that he or she may receive that support.

Unlike the temporary support provisions contained in Chapter 6 of the Texas Family Code, which apply during a divorce proceeding, Chapter 8 support is paid after the divorce proceeding has concluded. A summary of Chapter 8 support, including the 2011 amendments, is set out below.

Texas law presumes that spousal support is not needed unless the spouse seeking maintenance proves that he or she has tried to earn sufficient income or tried to acquire the necessary skills to provide for his or her minimum reasonable needs.

There are two primary situations in which a court may order post-divorce spousal maintenance. Both situations require a judge first find that the spouse seeking support will, at the time of divorce, lack sufficient property to provide for minimum reasonable needs.

In addition, the judge must find that (a) the other spouse was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence against the spouse or the spouse's child within two years of the divorce being filed or while the divorce is pending, or (b) the spouse seeking support has a physical or mental disability, is the custodian of a disabled child of the marriage who requires personal supervision, or is unable to earn sufficient income after a 10-year
marriage.

In the event that the marriage exceeds 10 years, however, it is presumed that the request for maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in seeking sufficient income or developing necessary skills.

Once a court determines that a spouse is eligible to receive post-divorce support, the court will consider many factors to determine the amount and duration of the support, including the amount of time it might take for the spouse to acquire necessary education or training to earn sufficient income.

The court will also consider the duration of the marriage, the age of the spouses and the physical condition of the spouse seeking maintenance. Finally, a Texas court can consider marital misconduct like adultery or fraud in deciding whether to award or deny a spouse's request for post-divorce maintenance.

Prior to Sept. 1, 2011, a court could award a maximum of three years of support once the divorce was granted and the amount would be capped at $2,500 per month or 20 percent of the supporting spouse's gross monthly income.

Now, however, the maximum amount has increased to $5,000 per month and the duration of the order has been increased to five, seven or 10 years, depending on the length of the marriage. The court is still required to limit the duration of a maintenance order to the shortest reasonable time, but may order spousal maintenance indefinitely in some situations.

Texas law permits garnishment of spousal maintenance directly from the former spouse's paycheck once it has been ordered by the court. Failure to pay spousal support in accordance with a court order can result in incarceration.

Either spouse may request modification or termination of the spousal maintenance obligation. The support obligation terminates on the death of either spouse or on the remarriage of the person receiving support.

It can also be terminated if, after a hearing, the court determines that the supported spouse is living with another person in a romantic relationship.

Further, the obligation can be reduced or increased if either party can prove that a substantial change has occurred since the judge signed the original order for support.

If you have questions about a Texas spousal support order, or the support requirements under AFI 36-2906, please call the Joint Base San Antonio-Lackland Legal Assistance Office at 671-3362 to schedule an appointment to speak with an attorney.