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!
(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.