Robert Gradel,
Attorney At Law, Lampasas, Texas
A Lawyer Specializing in Family Law

ALIMONY VS. MAINTENANCE WHAT IS THE DIFFERENCE, AND WHY SHOULD I CARE?
(Continued from Elements of Alimony and Maintenance)

What is the burden of proof?

The statutory presumption is against maintenance, unless the reason is disability. FC 8.053.

§ 8.053. Presumption
(a) Except as provided by Subsection

(b), it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in:
(1) seeking suitable employment; or
(2) developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.
(b) This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because of an incapacitating physical or mental disability.

So if the spouse gets a big property settlement in the divorce, does that eliminate maintenance?

Consider these two cases:

In O'Carolan v. Hopper, 71 S.W.3d 529 Austin 2002, the appellate court reversed a case in which the trial court gave much of the property to husband, and awarded maintenance to wife . The trial court ordered Hp to pay W spousal support for two years according to the following schedule: $ 1,000 per month for three months; $ 1,500 per month for the next eighteen months; and $ 2,000 per month for the last three months. H was the high income earner, so it was apparent that the trial court was equalizing the property division by awarding the alimony. By awarding W only maintenance and no community property, the trial court abused its discretion.

In Stone v. Stone, Eastand , No. 11-02-00258, September 4, 2003, the W received a $225,000 note payable at $2,729.87 per month. Her other income was $400 per month in child support, and income from a crummy job. The trial court awarded her $600 per month maintenance for 2 years. She testified that her monthly expenses were $6,156.00 per month. From reading the case, there was a great emphasis on the abuse of discretion standard, and very little evidence adduced by either side. I would be reluctant to rely on this case to prove that a spouse can receive maintenance if they also have or receive significant assets.

How much maintenance will be paid, and how long?

The statute says maintenance shall be paid in the least amount and for the shortest time. The only exception is if the spouse is unable to support themselves because of a mental or physical disability, in which case it can be indefinite. The award is limited to $2,500.00 per month, or 20% of spouse's GROSS income, whichever is less. Gross income does not include VA disability, SS benefits or worker's comp. FC 8.055(d).

Can I get a jury issue?

Probably not. The matter is not part of the Pattern Jury Charge for Family Law, and the amount and length of maintenance is determined by factors outside the jury's purview (the community property split/just and right division is solely decided by the judge). Therefore, the only issue would be whether to award it, not how much or for how long. Noting the trend to take away from a jury matters that are merely advisory (FC 105.002), the odds of a jury getting this question seem slim.

Did you say that maintenance can actually go down after the divorce?

Actually, it is even worse than that. It can ONLY go down. This statute is intended to keep a divorcing spouse off welfare. If the spouse gets a better job or other circumstances change to the betterment, the paying spouse may file a modification motion pursuant to FC 8.057 and request that the payments go down or cease. The receiving spouse cannot ever request that the payments go up, even if there was some post divorce event that created additional burdens or disabilities on that person.

Is there anything in this statute that will do me any good if I represent the non-monied spouse?

The legislature has added a withholding provision in this statute not only for maintenance, but also for contractual alimony. FC 8.101. Like c/s you can only withhold 50% of the net disposable earnings for all withholding orders combined. In order to withhold for contractual alimony, you must either provide for it in the agreement, or there must be a delinquency in the alimony payments. FC 8.101.

There is also an order of priority:

(4) subject to the maximum withholding allowed under Section 8.106, order that withheld income be applied in the following order of priority:
(A) current child support;
B) current spousal maintenance;
C) child support arrearages; and
D) spousal maintenance arrearages.

The statute also adds a contempt feature for contractual alimony as well as maintenance, if the alimony was "approved by the court." FC 8.509.

There are affirmative defenses to contempt for nonpayment of maintenance and alimony:

(c) It is an affirmative defense to an allegation of contempt of court or the violation of a condition of probation requiring payment of court-ordered maintenance that the obligor:
(1) lacked the ability to provide maintenance in the amount ordered;

(2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;
(3) attempted unsuccessfully to borrow the needed funds; and
(4) did not know of a source from which the money could have been borrowed or otherwise legally obtained.

These sound just like the laundry list of affirmative defenses to child support contempt.

What are the other differences between alimony and maintenance?

Alimony only terminates if the payee spouse dies.
Maintenance terminates if either party dies
Maintenance terminates if the receiving party remarries (alimony does not)
Maintenance terminates if the receiving party lives in sin with "another person." FC 8.056

ALIMONY vs. MAINTENANCE CONTINUED (Case Law)