Spousal Support (Spousal Maintenance)
To be eligible to receive spousal maintenance, the petitioner must prove that she (1) is a spouse and (2) has met the statutory requirements based on a ten-year marriage or family violence. O’Connor’s Texas Family Law Handbook, 262 (2010). To be eligible to receive spousal maintenance, the petitioner must be a spouse or a putative spouse. Id. In addition, the petitioner must prove one of the two statutory bases under Family Code § 8.061.
(a) Claim based on 10-year marriage. Under Family Code § 8.051(2), the petitioner is eligible to receive spousal maintenance if she proves (1) the marriage lasted ten years or longer, (2) the petitioner lacks sufficient property to meet her minimum reasonable needs, and (3) the petitioner cannot support herself because of her own disability, her child’s disability, or her lack of earning capacity. Id.
(1) Married at least 10 years. The petitioner must establish that she and the respondent have been married for ten years or longer. Id. The ten year period is measured from the date of marriage to the date of trial. Id.
(2) Insufficient property to meet minimum reasonable needs. The petitioner must establish that she lacks sufficient property to provide for her minimum reasonable needs. Id.
(A) Minimum reasonable needs. The minimum reasonable needs for a particular person or family is a fact-specific determination that ordinarily should be made by the trial court. Id. Courts have generally considered a spouse’s ability to pay the following expenses as evidence of meeting the spouse’s minimum reasonable needs: mortgage or rent payments, utility bills, auto payments, insurance (home, medical, and auto), gas, groceries, credit cards, uncovered medical expenses, drugs and medicine, clothing, child care, and transportation costs. Id.
(B) Insufficient property. To determine if a spouse lacks sufficient property to provide for her minimum reasonable needs, courts consider the spouse’s monthly income, the value of any income producing property, and the value of the property awarded to the spouse through the courts division of the marital estate. Id. at 263. The court will then compare the spouse’s projected income with her projected expenses to determine if she can meet her minimum reasonable needs. Id.
(3) Petitioner cannot support self. The petitioner must establish that she cannot support herself because of her own disability, her child’s disability, or her lack of earning capacity. Id.
(A) Petitioner is disabled. To be eligible to receive spousal maintenance, the petitioner can show that she is unable to support herself through appropriate employment because she suffers from an incapacitating physical of mental disability. Id.
(B) Petitioner cares for a disabled child. To be eligible to receive spousal maintenance, the petitioner can show that she is unable to work outside the home because she is the custodian of a child of the marriage who is disabled. Id. at 264. The disabled child can be any age, including an adult child. Id. The disabled child must be a child of the marriage. Id. The disabled child must have a physical or mental disability that requires substantial care and personal supervision. Id.
(C) Lack of earning capacity. To be eligible to receive spousal maintenance, the petitioner can show that she is unable to provide for her minimum reasonable needs because she clearly lacks the earning capacity to provide for herself. Id. The focus is on whether the spouse’s current earning capacity can meet her current minimum reasonable needs. Id. Spousal maintenance under the family code is not allowed unless the petitioner can also show that she has made diligent efforts in either (1) seeking suitable employment or (2) developing the necessary skills to become self-supporting during the pending divorce suit. Id.
(b) Claim based on family violence. Under Family Code § 8.051(1), the petitioner is eligible to receive spousal maintenance if she proves the respondent was convicted of or received deferred adjudication for a criminal offense that constituted an act of family violence. Id. at 264-265. A petitioner seeking maintenance based on family violence is not required to prove she is seeking suitable employment or developing job skills to qualify for maintenance. Id. at 265
(1) Family violence. Family violence includes assault, certain forms of child abuse, and dating violence. Id.
(2) Act occurred within 2 years of suit. The respondent must have been convicted of or received deferred adjudication for a criminal offense constituting an act of family violence that occurred (1) within the two years before the dissolution suit was filed or (2) while the suit has been pending. Id.
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