What is Alimony and How is it Decided?
Written by AskTheLawyers.com™ on behalf of Samuel E. Bassett with Minton, Bassett, Flores and Carsey.
Spousal support, maintenance, or “alimony” is an important element for consideration in any divorce. The amount of alimony in question can vary greatly from family to family and state to state. If the couple has a child or children, spousal support is generally calculated after child support, but is not mandatory in most states. However, if one spouse is likely to suffer significant hardship without some financial support from the other, a judge may choose to mandate alimony. Court ordered spousal support is less likely when the marriage has only been for a few years and both parties are gainfully employed and self-sufficient. If you have questions about alimony, talk to a family law attorney in your area.
Court-ordered alimony is limited in Texas, and often referred to as spousal maintenance.
Many spouses agree to pay spousal maintenance without a court order. However, when one spouse is not cooperative or otherwise unwilling, the court may choose to get involved and make the alimony enforceable. Texas is a community property state, which means that all marital assets will be divided in whatever way a judge deems to be just and right, unless the spouses reach a different agreement on their own. In many cases, property division in Texas divorces equates to about 50/50; this means that in many community property states, spouses who stayed home and did not work are not penalized for doing so, and can still receive a portion of the other spouse’s income.
Alimony can be indefinite or have a fixed end date.
In many cases, spousal maintenance is set to end when the recipient of the support remarries or dies. In other cases, the support may be scheduled to end a certain number of years after the divorce has been finalized. While support may also be arranged to continue for an unlimited amount of time, this is less common. Even indefinite alimony can be adjusted or canceled when the court deems appropriate.
Courts generally consider the following factors when deciding spousal support:
- How much money does each person make each month?
- Did one spouse stay home to care for the family or household duties for a significant period of the marriage?
- What expenses can each spouse reasonably be expected to have each month?
- What standard of living did both spouses experience during the marriage and what it will take to reasonably accommodate that standard?
- Did the couple contribute significantly to a savings or retirement account that both spouses should have a part of?
Many judges follow the 40% rule.
Lawyers and judges alike are familiar with the 40% rule, and in many cases, it is easily applied. This rule ensures that the person paying spousal support is left with no less than 40% of their income after all the necessary payments are made. While this is not an official rule and is not applicable across the board, it is a common standard to keep in mind when deciding alimony. For example, in a marriage where one spouse stayed home to care for numerous children, the necessary child and spousal support may leave the spouse with less than 40% of their income.
Both parties are generally allowed to negotiate regarding spousal support.
In many cases, the spouses are able to come to an acceptable arrangement regarding spousal support without a court order. However, it’s still important to have an experienced family law attorney look over the paperwork before signing to make sure that everything is accounted for. However, if the judge issues an order for a certain amount of alimony, either party may present evidence to prove why it should be adjusted higher or lower.
To learn more about how alimony is decided or for help negotiating your spousal support, talk to a family law attorney in your state.