ALIMONY VS. MAINTENANCE: WHAT IS THE DIFFERENCE, AND WHY SHOULD I CARE?
Presented by Robert Gradel
HIGHLAND LAKES BAR ASSOCIATION SEPTEMBER 26, 2003
(Continued from Burden of Proof)

Case Law

CASE LAW REVIEW:

1. O'Carolan v. Hopper, 71 S.W.3d 529 Austin 2002 (see above)

2. Stone v. Stone, Eastand , No. 11-02-00258, September 4, 2003 (see above)

3. DuBois v. DuBois, 956 S.W.2d 607, Tyler 1997. Wife was certified elementary school teacher, received, $7,400.00 in cash, and $18,000.00 in retirement benefits at the time of divorce. No abuse of discretion to deny post divorce maintenance. Reversed and remanded to determine if H was intentionally underemployed.

4. Hale v. Hale, 975 S.W. 2d 694 Texarkana, 1998. H was ordered to pay $300.00 per month to W for 3 years. H earned $36k per year, W about $900 per month. 10 year marriage, violence by H, W was in night school at the time of the divorce, she got $125 per month in c/s. Evidence was that her basic living expenses were $851.00 per month.

5. Alexander v. Alexander, 982 S.W.2d 116, Houston 1998. 10 year plus marriage. Wife was able to earn only minimum wage. She was going to school to get college degree at time of divorce. The judge gave her $575.00 per month for 3 years (20% of H's gross income). She was in school when the parties married, quit when she became pregnant. Monthly expenses for her and the children were $1,800.00 per month, there was no mention in the opinion of any property she received at the time of the divorce.

6. Lopez v. Lopez, 55 SW 3rd 194, 2001 Corpus Christi. 10 year plus marriage. H was ordered to pay W maintenance of $840.00 per month for 3 years. H was a postal worker earning $52k, W testified she fell and hurt her back and could not work, even if she could, she would only earn minimum wage, she also suffered from depression and had diabetes. W received the house, a car, furniture in the house, and the proceeds from the sale of a house ($36k), and ½ of the savings plan ($20k). Her monthly expenses were $2,700 per month.

7. Pickens v. Pickens, 62 S.W.3rd 212, 2001 Dallas. 10 year plus marriage. H was ordered to pay $1,500 per month indefinitely. There was no medical evidence introduced as to wife's disability! W had breast implants that went bad resulting in multiple surgeries. She testified to a litany of ailments, from liver to irritable bowel. The opinion does not mention H's income or W's expenses.

8. Limbaugh v. Limbaugh, 71 S.W.3rd 1, Waco 2002. 10 year plus marriage. W was born in Spain, had limited English skills. Her primary occupation was house cleaning. W's monthly expenses were $2,300, net income of $668. She also received $500 per month Navy retirement, and about $600 per month c/s, the court calculated her income to be about $250 per month less than her expenses. The only hard assets she received was the residence and an automobile. The exact amount of the month maintenance and duration is not recited in the opinion.

What do I need to prove to get it?

You need to show all assets the person will receive from the divorce, as well as all separate property or other assets they own or to which they access. Contrast that with the REASONABLE monthly expenses, and shoot for the difference. An inventory on file as well as a financial information sheet for the person asking for the maintenance would seem to be a minimum requirement to succeed.

Conclusion

It is debatable whether ex-wife and the kids would be better off qualifying for low income housing and medicaid or attempting to acquire a judgment for and collect maintenance. The Texas statute is certainly not a good vehicle for crafting a property settlement and its use should be avoided in that context.

ALIMONY vs. MAINTENANCE CONTINUED (Economic Contribution Teaser)