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.
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!
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.