Divorce

In divorce, a common question is, “what is the alimony formula”. Well, there really is no set alimony formula for divorce. This is in complete contrast to child support, which is decided based upon a specific formulas in each state. Alimony is based on factors and those factors are decided through divorce negotiation or by a divorce judge. But, there is no alimony formula available to your divorce attorney or you to determine in advance what alimony will be paid in your case.

What does a divorce court look at to determine alimony? Those issues do vary by state. But, there are also many alimony factors that are common from state to state. So, although there is no specific alimony formula for you to rely on, there are alimony factors that you can look at to help you determine what the alimony might be in your case.

In divorce, some of the alimony factors that a judge might look at include the following. First is the length of your marriage. If the parties have been married for one year, the court’s attitude towards a request for alimony will be very different than if the parties have been married for twenty years. Because the length of marriage varies so much in all divorces, it is not possible to plug this factor into an alimony forumla to determine the alimony amount.

Another factor affecting the award of alimony is employment status. Obviously, if the spouse seeking alimony has been unemployed or underemployed for a number of years to care for young children, the home, or the spouse, that is a factor that will militate in that spouse’s favor if he or she is seeking alimony. On the other hand, if that spouse has the ability to obtain employment that will more than adequately meet his or her needs, the court might think a little differently about awarding alimony to that party. Other factors that are considered closely with this factor include level of education, job experience, the age of children in the household, and work history.

A major factor that can affect an award of alimony is the amount of property to be retained or divided by the parties. If the spouse seeking alimony has been a stay at home parent, but will have signifcant assets after divorce or has separate assets, like a trust fund, the court’s attitude towards the award of alimony will be affected. The court will certainly view a request for alimony under these circumstances much different than a request made by an individual who is receiving no assets in the divorce or who does not have any separate property.

The health of the party seeking alimony is a major factor that can impact a court’s decision in awarding alimony. If the spouse seeking alimony has a debilitating physical condition that impacts whether or how much they can work, the court will not want to impoverish that party after divorce and the court will be more likely to use alimony to address at least basic living needs.

One other factor that should be considered by the divorce court and by the parties, is the taxability of the alimony payments. In most instances, if there is no specific provision to the contrary, spousal support payments are taxable to the recipient and tax deductible to the payor. The tax benefit obtained by spreading out economic wealth in this fashion can be significant and should be discussed in depth with your divorce attorney.

One issue that is not always considered by the court, but should be discussed with your divorce attorney, is that alimony payments are, in general, not dischargeable in bankruptcy. If there is any possibility that the party who is to pay alimony will be filing for bankruptcy, the divorce attorneys will negotiate very hard on both sides to maximize the final benefit to their client in divorce.

It should thus be apparent that in divorce, there can be no easy alimony forumla, no matter what state you live in. It is impossible to plug these and other factors into a mathematical equation to arrive at a “correct” alimony formula. It is necessary that the divorce court, or the divorce attorneys review how these varied and different factors affect both parties in the divorce and then arrive at a solution that encompasses all of the divorce issues, including property settlement and alimony. They cannot simply set up an alimony formula that would work for all parties.

Attorney Jean Mahserjian is the author of numerous websites and books devoted to helping consumers through the process of separation and divorce. To download free excerpts from her family law books, visit: Divorce and Alimony

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This article provides a brief overview on Texas law concerning post-divorce alimony in Texas. Laws differ from state to state and individual circumstances vary, so you should consult with a qualified family law attorney in your area for specific advice on your particular situation. Additionally, this article deals only with post-divorce alimony. It does not address temporary alimony, which is provided for under a different provision of the Texas Family Code.

Two Kinds of Alimony: Contractual and Court Ordered maintenance

There are two kinds of post-divorce alimony in Texas: contractual alimony and court ordered maintenance. The Texas Family Code also provides authority for the court to order temporary alimony which occurs while a divorce is pending. However, temporary alimony is outside the scope of this article and will not be addressed.

Contractual Alimony

Contractual alimony is based on an agreement between the parties in their divorce decree. For tax purposes, contractual alimony is normally deemed income to the receiving party and is deductible from the income of the paying party. Since contractual alimony must be based on an agreement of the parties, there are no limits to the possible amount or duration of the alimony.

Court Ordered Maintenance

Court ordered maintenance is provided for by Texas Family Code Chapter Eight. Although actually awarded in only a small percentage of Texas divorces, the court has the right to order one spouse to pay the other post-divorce maintenance in either of two circumstances:

1. The payor spouse either received deferred adjudication or was convicted of a crime constituting family violence within two years of the filing of the divorce case, or

2. The parties have been married at least ten years and the receiving spouse has some kind of financial limitation (disability, unable to work because caring for the party’s child, or lacks earning ability to meet minimum reasonable needs).

The monthly amount of court ordered maintenance is capped at the lesser of: a) $2,500 or b) 20% of the monthly payor’s gross income.

The maximum duration of court ordered maintenance is three years. The only exception is when maintenance is ordered as the result of a disability, in which case the duration can potentially extend indefinitely.

Considerations

Where there is a large disparity in incomes alimony can sometimes be used as a useful settlement tool. Since alimony is generally taxable to the receiving party and deductible to the paying party it can be often structured so that it is advantageous to both parties.

For example, a party in a high tax bracket can agree to make monthly alimony payments in exchange for a more favorable property division. If the receiving party is in a lower tax bracket, the overall income tax paid could be significantly lower than what it would be otherwise.

Another factor to consider is how rarely Texas trial courts order maintenance, absent an agreement. The statute allows for maintenance only when the specific statutory circumstances have been proven. There are several appellate cases that have reversed trial court decisions ordering maintenance when the requesting party did not provide sufficient proof that the standard had been met.

In cases where there is a large amount of community property, one of the most effective arguments in attempting to defeat a maintenance claim is that the requesting party will have ample resources to provide for their needs since the party will receive a significant amount of assets from the division of property.

Another common argument used to defeat a maintenance claim is that, during the pendency of the divorce, the requesting party has not made significant attempts to either obtain employment or obtain training that would allow the party to obtain employment.

As an example, lets take a divorce case where the wife is requesting maintenance on the grounds that the marriage is longer than ten years and that she lacks the earning ability to meet her minimum reasonable needs.

If the case has been pending for several months and at the time of

trial she has still made no effort to obtain employment or improve her job skills, it will be a difficult claim to succeed upon. The court is unlikely to find that she is “unable” to meet her reasonable minimum needs and more likely to believe that she is unwilling to take the necessary steps in order to provide for her own support.

Conclusion

Alimony in Texas, while rarely ordered, is an important and complicated issue. It can be used as an effective settlement tool and can potentially be a significant trial issue. For someone involved in a Texas divorce case with a potential alimony issue, the issue should be discussed in detail with an experienced divorce lawyer.

About the Author

Scott Morgan is a practicing Texas divorce attorney. For more information on texas divorce visit his website at http://www.texas-divorce-info.com. The website provides general information and resources on divorce, as well as specific information on Texas divorce law.

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