Not one I would have guessed, but thanks to John Kappel’s attention to detail and thorough research, it turns out Texas law does not allow for a party to get attorney’s fees in a successful enforcement action on spousal maintenance.
Why? Because in Texas, attorney’s fees can only be granted if allowed by statute or a contract between the parties. Tucker v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013).
While attorney’s fees ARE allowed by statute for enforcement of child support (Tex. Fam. Code 157.167), or enforcement of a division of property (Tex. Fam. Code 9.014), no such statute exists for the enforcement of spousal maintenance.
The only thing constant … is change. Prior this change in the Texas Family Code, which takes effect September 1, 2013, you could not hold a person in contempt for failing to pay contractual alimony. You could have them held in contempt for failure to pay court-ordered spousal support, but not contractual alimony. For an in-depth discussion on the differences, click here.
Now you can. The Texas Legislature has amended the Texas Family Code to allow a person to be held in contempt for failure to pay contractual alimony up to the amount, and for the amount of time, that the Court could have awarded spousal maintenance. The Court can even issue a wage-withholding order, at least to that limited amount, which it could not do before.
What I do not know is how the Texas Supreme Court will react. Under their recent opinion, on which I wrote an article, wage-withholding order for alimony was denied based on that alimony being a debt, and wage garnishment for a debt other than child support or court-ordered spousal maintenance is barred by the Texas Constitution. That means that on September 1, 2013, we may very well have another law that contradicts the Texas Constitution. Who said family law doesn’t have constitutional implications? We will have to see what happens.
First, make sure the clause you are looking to change is contractual alimony and not spousal support. You can get an idea by looking at my post here.
If it is contractual, read on!
Changing contractual alimony in Texas is not easy. It follows contract law, so typically you need the written agreement of both parties. You need to look carefully at the terms and conditions of the payments first, and see if there is a built in way to modify or terminate the payments. If not or the terms do not apply, you are going to need to talk to the ex-spouse.
Why would an ex-spouse agree to change the spousal payments? Sometimes out of the goodness of their hearts… or perhaps you offer them something of value – some ideas:
- More money over a longer period of time so that the payments are smaller;
- Less money but in a lump sum payment;
- Other property can be used as well; or
- An offer to pay off debts incurred jointly or by the other party during the marriage.
We have also seen other consideration given, like the addition/modification of a geographic residency requirement or exchange points. In the end, the deal is up to the parties, with very few exceptions.
Another method would be to attack it as you would a contract. This is much more involved, and more difficult.
If you have a question or want advise about a particular situation, email or call – we can help!
A Texas Court of Appeals held that a wage withholding order cannot be used to collect contractual alimony. This adds yet another difference between court-ordered spousal maintenance and contractual alimony for both clients and lawyers to know about and discuss.
The full opinion can be found here.
The most interesting part is that this invalidates Texas Family Code §8.101(b) to the extent it authorized wage-withholding for contractual alimony. The basis? Unconstitutional under Texas Constitution Article XVI, §28, which states that current wages for personal service are not subject to garnishment, except for the enforcement of court-ordered child support or spousal maintenance!
Before reading this post, make sure you know if the payments are contractual alimony or spousal maintenance. My prior post on the topic should help.
If a spouse (now ex-spouse) fails to pay contractual alimony, your remedies are the same as if they had breached any other contract. You look for the damages you suffer, which include both the payments outlined in the decree that the ex-spouse has not paid, any foreseeable damages, and attorney’s fees.
The missed payments should be easy to figure out. Tally up the amounts the ex-spouse has not paid.
Attorney’s fees are available through the Texas Civil Practice and Remedies Code section 38.001.
Foreseeable damages would be any additional penalties, fines, and other monetary amounts that the spouse could have foreseen you would suffer by their non-payment. For example, if the payments were known to be used to pay a mortgage, the paying spouse failed to make multiple payments, and the mortgage was foreclosed and the house lost, you could argue any additional penalties/fees, moving expenses, and perhaps other expenses were foreseeable and should be compensated.
Some issues for the suing party to consider are whether the ex breach the entire agreement or whether the breach was only of the specific payments not made. Things get more complicated here, since sometimes parties argue the contract was modified by different events or a pattern of past behavior, as well as the more limited breach of an installment contract versus the total breach. If arguments like this begin to surface, consult a lawyer familiar with this topic. It will serve you well, and in this setting, contingency fee contracts or retainer agreements are both typically available, depending on the firm.
The issue of whether spousal payments are court-ordered spousal maintenance or contractual alimony has come up again and again. Because this issue has a lot to it, I will outline some topics I hope to address and why the parties should care. This post will just serve as an outline.
- What is court-ordered spousal maintenance and what is contractual alimony;
- How to proceed when a spouse fails to pay court-ordered spousal maintenance and what relief is available;
- How to proceed when a spouse fails to pay contractual alimony and what relief is available; and
- How to tell the difference and which should you choose if you have the option.
Why Should a Party Care?
The parties should care about what these payments are classified as because the terms of enforcement/relief are different for each, the process for obtaining relief (how you plead the case) is different for each, one type of payment can be changed or eliminated while the other cannot, and finally, there are limits to each in terms of duration, amounts paid, and if it is even available.
(NOTE: This article was written in 2011. Please visit the more recent articles as there have been changes in the amount allowed for spousal maintenance and the enforcement options for contractual alimony have been expanded through changes in Texas law.)
Texas has recognized that at times, a spouse may need extra help getting to a point where they are independent or for some reason (typically domestic violence) the spouse should be given extra support that the ‘just and right’ division of community property cannot address. Therefore, the Texas legislature have outlined the process for a court to award spousal maintenance. While very limited compared to other states, it is a tool parties and attorneys should be aware of. Court-ordered spousal maintenance is governed by Chapter 8 of the Texas Family Code.
Court-Ordered Spousal Maintenance:
Instead of re-writing a whole topic, I have included two links. The first is a link to a short blog I wrote a while back which outlines court-ordered spousal maintenance, and the second is a link to a good overview of Chapter 8 of the Texas Family Code with internal links to the specific provisions.
When the parties can agree that one spouse should make payments after the divorce to the other, normally this is contractual alimony. The topic on How to Tell the Difference will cover this in more depth but for now the important thing is that the parties can agree to any amount, over any length of time, for any reason or even leave out the reasons and just have the language stating the amount, how and when payments will be made. Parties can also set triggers in place that can increase or decrease alimony amounts. This allows for the parties to do long-term financial planning, allows for a party to obtain additional education or tools to re-enter the workforce without the risk of spousal maintenance being changed, and otherwise allows for certainty that may not be available when a court can modify court-ordered spousal maintenance at the request of either party.
Any blog about Texas “alimony” should first state that in Texas, courts do not order “alimony,” courts order “spousal-maintenance.” Alimony, or post-divorce spousal payments, must be agreed to by the parties while the court may order spousal-maintenance in some situations.
In the past, Texas required a spouse to either have been married for 10 years or have suffered domestic violence within the past two years to even be considered a candidate for spousal maintenance. Even then, maintenance was limited to three years and the lesser of $2,500.00 or 20% of the payor’s gross income.
The legislature recently changed this by re-writing maintenance section of the Texas Family Code. These changes take effect September 1, 2011, and hit three main areas, the 10-year bar language, the duration and the amount of maintenance.
The legislature saw fit to change the language in the 10-year requirement to state the court may order maintenance if a spouse is unable to provide for their minimum reasonable needs due to an incapacitating physical or mental disability or if the spouse is taking care of a child that requires substantial care and personal supervision due to a physical or mental disability and prevents the spouse from earning sufficient income to provide for their minimum reasonable needs. This is slightly different wording than used before and may possibly lead to a more lenient view of when spousal maintenance is appropriate.
Duration of Maintenance
- Maintenance can now be ordered for up to five years if the marriage lasted less than 10 years and the payee was the victim of domestic violence within the past two years, has an incapacitating physical or mental disability or if the spouse is taking care of a child that requires substantial care and personal supervision due to a physical or mental disability and prevents the spouse from earning sufficient income to provide for their minimum reasonable needs. The five-year maximum will also apply to a marriage that lasted more than 10 years but less than 20 years.
- If the marriage lasted between 20 – 30 years, the court can order maintenance up to 7 years.
- Finally, if the marriage lasted 30 years or more, the court can order up to 10 years of maintenance.
Amount of Maintenance
- The legislature also saw fit to change the maximum maintenance a court could order. Now the amount is the lesser of $5,000.00 or 20 % of the payor’s monthly income.
Attorneys and parties should keep in mind that the factors determining maintenance still apply and can be used by either side in helping the court determine if and how much maintenance is appropriate. This includes the amount of community property that the spouses will have post divorce and if that property is enough to provide for their minimum reasonable needs with the income each will likely have. Finally, the court retains jurisdiction to review the maintenance order and a party can file to have that order reviewed upon proper showing of a material and substantial change in circumstances of one of the parties or a child of the marriage.