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 Alimony in the Other 49 States)

Elements of Alimony and Maintenance

What is Alimony:

Under the Internal Revenue Code, alimony is a payment that meets the following requirements:

1. payment on behalf of a spouse or former spouse under divorce or separation agreement
2. must be in cash
3. payments cannot be designated as excludable from income
4. spouses cannot be members of the same household
5. payments must stop on death of payee (ex)spouse
6. order/agreement should state "no liability after death" of payee spouse
7. cannot file joint return
8. cannot be excessively front end loaded
9. payments cannot be considered child support

The above payments are included as income of payee, deductible from income of payor with an "above the line deduction" - can be taken even if the standard deduction is taken.

What is Maintenance?

1. Award under FC 8.001 et seq from the future income of one spouse
2. Eligibility
1. convicted of family violence w/i 2 years of filing of divorce suit, or
2. 10 YEAR MARRIAGE and one of the following:
1. spouse unable to support him/herself because of an incapacitating physical or mental disability
2. spouse seeking maintenance is custodian of a child who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside of the home; or
3. SPOUSE SEEKING MAINTENANCE CLEARLY LACKS EARNING ABILITY IN THE LABOR MARKET ADEQUATE TO PROVIDE SUPPORT FOR THE SPOUSES'S MINIMUM REASONABLE NEEDS, AS LIMITED BY 8.054

What can you get? What are Minimum Reasonable Needs?

§ 8.052. Factors in Determining Maintenance

A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including:

(1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;

(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;

(3) the duration of the marriage;

4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;

(5) the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;

(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;

(7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;

(8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;

9) the property brought to the marriage by either spouse;

(10) the contribution of a spouse as homemaker;

(11) marital misconduct of the spouse seeking maintenance; and

(12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.

Minimum reasonable needs is determined on a case by case basis. You must be prepared to introduce facts to support or rebut the claim. Financial information sheets would be a minimum requirement, as well as evidence concerning assets and liabilities.

If your case involves disability, medical evidence is not strictly required, but testimony from the client unsupported by other evidence runs the risk of failing to meet the burden.

 

ALIMONY vs. MAINTENANCE CONTINUED (Burden of Proof)