Summary of Texas Separation, Divorce
and Alimony Law

Legal Separation in Texas

Texas law does not recognize legal separation. Couples generally can, however, enter into a separation agreement. Such an agreement should be drafted by an attorney. It is always best to consult an attorney when dealing with legal issues related to divorce and separation.

Initial considerations for Divorce in Texas

To file for divorce in Texas, at least one party has to be domiciled (you can have multiple residences but only one domicile) in Texas for six months. Additionally one of the parties has to live in the county where the divorce is filed for ninety days. Once you know the appropriate county in which to file the case, you must then find the appropriate court. In Texas, divorce actions are filed in District Courts. In sparsely populated parts of the state, several counties are served by a single District Court. In urban areas, a county may have more than one District Court. In the higher populated counties the action may be assigned to a subsidiary Family Law District Court, if one is available.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. Grounds for divorce are the legal reasons or basis for the divorce.

One no fault basis is that the spouses have lived apart for at least three years. The other no fault basis is called “insupportability.”

A court may grant a no fault divorce on the basis of insupportability if a marriage “has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation” (see section 6.001 of the Texas Family Code).

A divorce may also be granted in Texas under the following fault grounds:

• Cruelty
• Adultery
• Convicted of Felony and incarcerated at least one year
• Abandonment
• Confinement in a Mental Hospital for at least three years.

For more information about these fault grounds for divorce in Texas, see sections 6.002 to 6.007 of the Texas Family Code.

Division of Property

Texas is a “community property” state, meaning that property acquired by either spouse during marriage, except that considered to be “separate property,” will generally be divided equally between the spouses, unless a court finds such equal division to be unjust.

“Separate property” in Texas is generally considered to be property owned by one spouse prior to the marriage or acquired by one spouse by gift or inheritance during the marriage. Separate property is generally awarded to the spouse who originally owned it.

Maintenance/ Spousal Support/ Alimony in Texas

In Texas, “alimony” is generally referred to as “maintenance.” It is the court-ordered financial support of one spouse by the other spouse as part of a divorce. “Temporary spousal support” is similar, except that it is only effective while a divorce is pending. When spousal support is agreed to by the parties as part of a final court order it is referred to as “contractual alimony.”

The laws of Texas governing court-ordered maintenance are generally contained in Chapter 8 of the Texas Family Code, which may be found at the following link.

In Texas, court-ordered maintenance (but not temporary spousal support or contractual alimony) is generally limited in duration and amount. This is because maintenance in Texas is designed to simply help a recipient spouse become self supporting; it is not intended as a method to distribute property or allocate debt (though contractual alimony could be used to obtain those ends). Court-ordered maintenance cannot exceed three years in duration, unless the recipient spouse cannot become self supporting due to an incapacitating physical or mental disability. Court-ordered maintenance additionally cannot exceed the lesser of (1) $2,500 per month, or (2) 20% of the paying spouse's average monthly gross income. Again, these limits only apply to court-ordered maintenance and not to temporary spousal support or contractual alimony.

Additionally, courts generally may only order maintenance in one of the following two scenarios: (See Section 8.051 of the Texas Family Code at this link)

• (1) The duration of the marriage was 10 years or longer,
• AND the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under the Texas Family Code, to provide for the spouse's minimum reasonable needs,
• AND the spouse seeking maintenance:
• • is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, OR
• • is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home, OR
• • clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs.
• (2) In certain cases involving domestic violence (see the statute, linked above, for additional detail).

In determining the nature, amount, duration, and manner payments for a maintenance award, courts in Texas consider “all relevant factors,” including:

• (1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;
• (2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
• (3) the duration of the marriage;
• (4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
• (5) the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
• (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
• (7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
• (8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;
• (9) the property brought to the marriage by either spouse;
• (10) the contribution of a spouse as homemaker;
• (11) marital misconduct of the spouse seeking maintenance; and
• (12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304 of the Texas Labor Code.

(See Section 8.052 of the Family Code at this link).

Tax Consequences of Alimony/Maintenance

A court may increase or decrease the amount of money paid as alimony if either spouse requests it from a court and if circumstances have changed since the original judgment for support. Some examples of a change in circumstances that might warrant a modification of a support order would be remarriage, cohabitation, changes in need, changes in ability to pay, retirement, or the death of the payor.

If a court determines that a change of circumstances has occurred, it considers all of the circumstances to determination the nature of the support modification.

When do Alimony Payments End?

In general, permanent alimony terminates when either party dies or when the recipient remarries.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.