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!