My wife and I are headed toward divorce. We have been married for 9 years. It is my understanding that spousal maintenance can be awarded if the marriage has lasted for 10 years or more.
Does the court recognize the petition date as the end of the marriage or would the divorce need to be final before our 10th anniversary in order to ensure I would not need to pay alimony?
Under Texas law, a claim for spousal maintenance, sometimes referred to as court-ordered alimony is a claim for periodic payments from the future income of one spouse for the support of the other spouse. Tex. Fam. Code § 8.001(1). In Texas such support is intended to be provided on a temporary basis to one spouse after the dissolution of the marriage.
Spousal maintenance can be awarded in Texas under two different basis. First it may be awarded if one spouse has been convicted of or received deferred adjudication for committing family violence.
Second, spousal maintenance can be awarded if the marriage has lasted for 10 years or more, the spouse seeking maintenance lacks sufficient property to provide for her minimum reasonable needs, and the spouse seeking maintenance lacks earning ability to provide for her minimum reasonable needs, is physically or mentally disabled, or is the custodian of a physically or mentally disabled child. Tex. Fam. Code §8.051.
Under the second basis for awarding spousal support, the ten-year period requirement to be eligible for spousal maintenance is measured from the date of marriage to the date of trial. Thus, the parties do not have to be married for 10 years on the date the petition is filed or on the date they separated. Even when spouses no longer live together they are still legally married at the time of trial.
Thus, to answer your question if your spouse is not eligible for spousal maintenance under the first basis, she still may be eligible for spousal maintenance under the second basis if your divorce decree is not signed and entered or your case has not gone to trial before your 10th wedding anniversary. As such, filing the petition for divorce does not stop the clock for the 10 year prerequisite for eligibility of spousal support.
However, it is important to note that even under the second basis for spousal support a spouse is not automatically eligible to receive the support if you have been married for 10 years or longer. The court will consider a variety of factors in determining your spouses need for support payments.
As stated above, in addition to being married for 10 years, the spouse asking for maintenance will need to prove that she lacks sufficient property to provide for her minimum reasonable needs, and that such spouse cannot support herself because of her own disability, her child’s disability or her lack of earning capacity. Fam. Code § 8.051(2).
To obtain more specific answers to your situation please contact a Texas attorney. Cordell & Cordell does practice in Texas. Please be advised that my answering of this question does not constitute an attorney-client relationship.
Jennifer Hankinson is a Staff Attorney in the Dallas, Texas office of Cordell & Cordell, where she practices domestic relations exclusively. Ms. Hankinson is licensed in the state of Texas. Ms. Hankinson received her bachelors’ degrees in both Finance and Political Science from Santa Clara University in Santa Clara, California. She later received her Juris Doctor from Gonzaga University School of Law in Spokane, Washington, where she graduated Cum Laude.
4 comments on “Alimony and the 10-year rule”
You don’t have to be divorced to receive part of your spouse’s retirement.Wjo ever makes the most you can draw off of their SS.if they have worked just a few years..It varies on the % state to . state
I have been married 10yrs left husband cause he cheated on me I have some proof can I get spouses support.
I was married 27 years the divorce was filed in California. My ex is bring me back to court to lessen support. Is spousal maintenance something I can request now that I am being brought back into court. will the judge look at both our incomes to decide.
I just read your article on Spousal maintenance. You fail to mention in your article that there may also be temporary spousal support ordered that has to be paid from the date it’s ordered to the date of final divorce or a date otherwise put forth by the Judge. And you don’t have to be married for ten years for the other spouse to receive that. Even if there hasn’t been family violence. I’ve been married for 9 yrs last September and filed for divorce in October 2015. I have grounds for divorce of mental and physical cruelty and I was ordered to pay my soon to be ex 3275.00 a month from last February through June 30. And after that I still have to over $2000.00 in her support to the final divorce. It’s in November 2016. No kids either. If you can help me email me.