Spousal Maintenance in a High-Net-Worth Texas Divorce

Texas limits court-ordered spousal maintenance more tightly than most people expect. The amount is capped, the duration is capped, and a spouse has to qualify before the court may order anything. In a high-net-worth divorce, those limits rarely match the lifestyle the spouses had, which is why wealthy couples often settle the question with a negotiated agreement that the statute does not govern, called contractual alimony. This page explains who qualifies for court-ordered maintenance, how much and for how long, how it ends or changes, how contractual alimony differs and what each choice means for enforcement and taxes.

Our family law team represents paying and receiving spouses. As a San Antonio divorce lawyer practice, we start with the numbers and the statute, and our page for a high-asset divorce lawyer in San Antonio covers how larger estates are handled. The first consultation is free.

Who Qualifies for Court-Ordered Maintenance

Maintenance in Texas is not automatic and it is not a share of the other spouse’s income. Under Family Code Section 8.051, a spouse can receive court-ordered maintenance only if the spouse will lack sufficient property, including the spouse’s separate property, on the dissolution of the marriage to provide for the spouse’s minimum reasonable needs, and one of these applies:

• The other spouse was convicted of, or received deferred adjudication for, a family violence offense against the spouse or the spouse’s child during the marriage, and the offense occurred within two years before the suit was filed or while it was pending.
• The spouse cannot earn sufficient income to meet minimum reasonable needs because of an incapacitating physical or mental disability.
• The spouses were married for 10 years or longer, and the spouse lacks the ability to earn sufficient income to meet minimum reasonable needs.
• The spouse is the custodian of a child of the marriage who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income.

Two points matter for a high-net-worth case. First, the property test comes before anything else. A spouse who receives substantial property in the division may not lack sufficient property to meet minimum reasonable needs, however large the other spouse’s income is. Second, a spouse who relies on a marriage of 10 years or longer faces a presumption that maintenance is not warranted unless the spouse has exercised diligence in earning sufficient income or developing the necessary skills during the separation and while the suit is pending (Section 8.053). The statute does not define “minimum reasonable needs,” and it does not list the standard of living during the marriage among the factors a court weighs.

When the requirements are met, the court weighs all relevant factors under Section 8.052 in setting the amount, duration and manner of payment. They include each spouse’s ability to meet minimum needs on their own, education and job skills and the time needed to retrain, the length of the marriage, the age, work history, earning ability and health of the spouse seeking maintenance, homemaker contributions, contributions to the other spouse’s education or earning power, property each spouse brought to the marriage, wasteful spending or concealing or fraudulently disposing of property, marital misconduct including adultery and cruel treatment, and a history or pattern of family violence.

The Statutory Cap: Lower Than Most People Expect

Section 8.055 caps court-ordered maintenance at the lesser of $5,000 per month or 20 percent of the paying spouse’s average monthly gross income. Gross income for this purpose includes wages, commissions, tips and bonuses, self-employment income, interest, dividends, royalties and net rental income, and it excludes items such as return of principal and accounts receivable. Twenty percent of income equals $5,000 when average monthly gross income is $25,000, so above that level the $5,000 figure controls. For a high-net-worth payor, the dollar cap almost always applies, and it does not rise with income or with the size of the estate. The number is a ceiling. The statute does not require the court to order the full amount. Our Texas alimony calculator estimates the statutory amount, and our guide to court-ordered spousal maintenance covers the rules in general.

How Long Maintenance Actually Lasts

Section 8.054 sets the maximum length of court-ordered maintenance by the length of the marriage. The court must also limit the order to the shortest reasonable period that allows the spouse to earn sufficient income to meet minimum reasonable needs, unless the spouse’s disability, the spouse’s duties as custodian of an infant or young child or another compelling impediment prevents it.

Marriages of 10 to 20 Years

Up to five years. The same five-year limit applies when the basis is family violence, even if the marriage lasted less than 10 years.

Marriages of 20 to 30 Years

Up to seven years.

Marriages Over 30 Years

Up to 10 years, which is the longest period the statute allows unless a disability or the care of a disabled child is the basis.

The Disability Exception

If eligibility rests on the spouse’s own incapacitating disability or on caring for a disabled child, the court may order maintenance for as long as the spouse continues to meet the eligibility requirements. The order is subject to periodic review, on a party’s request or on the court’s own motion.

When Maintenance Automatically Ends

Court-ordered maintenance ends on the death of either spouse or the remarriage of the spouse receiving it (Section 8.056). If the receiving spouse cohabits with another person in a permanent place of abode on a continuing basis in a romantic relationship, the court must terminate maintenance after a hearing. It does not end on its own, so a paying spouse who believes cohabitation has begun has to ask the court. Termination does not cancel payments that were already owed.

Court-ordered maintenance can also be modified, but only in the court that issued the order and only on a showing of a material and substantial change in circumstances. The change applies only to payments accruing after the motion is filed, and the court cannot increase maintenance beyond the amount or duration of the original order (Section 8.057). A paying spouse who loses a job after the divorce, or a receiving spouse who becomes disabled, cannot use that change to start maintenance that was never ordered. A divorce modification lawyer in San Antonio can review an order and tell you whether a motion is worth filing.

Why the Statutory Cap Often Doesn’t Matter in a High-Net-Worth Case

Five thousand dollars per month has little to do with the cost of the life two spouses built on a large income. A spouse who has depended on a high earner’s income may not qualify for court-ordered maintenance at all if the property division leaves that spouse with substantial assets, and a spouse who does qualify is held to the cap and the duration limits. That is why the more important question in many high-net-worth cases is not what a judge can order but what the spouses can agree to.

Contractual Alimony: The Real Mechanism in Many High-Net-Worth Cases

Contractual alimony is support that the spouses agree to in a written settlement. Because it comes from the agreement and not from a court’s order under Chapter 8, the spouses can set the amount, the duration, the payment dates and the events that end it, and they are not limited to the statutory cap or the duration tiers. They also do not have to satisfy the eligibility requirements, since a spouse who would not qualify under Section 8.051 can still receive support the other spouse agrees to pay. Our page on contractual alimony explains the concept, and a divorce mediation lawyer in San Antonio can help the spouses reach one. Spouses can also address support before the marriage: the Family Code lists the modification or elimination of spousal support among the subjects a premarital agreement may cover, although the agreement cannot adversely affect a child’s right to support (Section 4.003).

The Real Tradeoff: Enforcement

Court-ordered maintenance has strong enforcement tools. The court may enforce it by contempt, may render a judgment for arrears and may order income withholding (Sections 8.059 and 8.101). Contractual alimony is enforced differently. If the spouses put the agreement in the decree, a court can enforce it by contempt only up to the amount and period the court could have ordered as maintenance (Section 8.059(a-1)). Beyond that, the remedy is a suit for breach of contract, which takes longer, costs more and does not carry the threat of jail. Income withholding under Chapter 8 does not automatically apply to contractual alimony unless the agreement allows it or payments are not timely made (Section 8.101(b)). These are drafting points. An agreement can provide for withholding and can include security, such as life insurance or a lien, to protect the recipient. The paying spouse should ask what happens at death, remarriage and cohabitation, because the contract does not end on those events unless it says so.

How These Two Tools Actually Work Together

Many high-net-worth settlements combine a court-ordered amount up to the statutory cap with a contractual layer above it. The first layer carries the statute’s enforcement tools. The second carries whatever the spouses write. The documents should say which payment is which, because the characterization affects enforcement, modification and the end of the obligation. A settlement should settle these terms:

• The amount of each layer, the payment dates and the length of each
• Whether either layer ends on death, remarriage or cohabitation, and whether the amount can be changed later
• Whether the payor’s income can be withheld, and what security protects the payments
• How the support fits with the property division, since a spouse who takes more property may agree to less support
• Child support, which is separate from support for the spouse (see our guide to high-income child support)
• Tax treatment, covered next

Tax Treatment

For a divorce or separation instrument executed after December 31, 2018, alimony and separate maintenance payments are not deductible by the payor and are not included in the recipient’s gross income. That applies to court-ordered maintenance and to contractual alimony alike. An instrument executed before 2019 follows the earlier rule, under which the payor deducts and the recipient reports the payments, unless a later modification expressly adopts the new rule. Child support is never deductible and is not income. Your CPA should confirm how these rules apply to your agreement, because the lack of a deduction changes what a payor can afford to offer.

What Each Spouse Should Ask Early

If you are the spouse who would pay, ask whether the other spouse qualifies under Section 8.051, how long the marriage has lasted, what the property division will leave each of you, and what structure gives you certainty. Our guide to whether you have to pay alimony explains the payor’s side. If you are the spouse who would receive, ask whether you qualify, what you would need in order to meet your needs after the case, what security protects the payments and what happens if the payor’s income drops. Both of you should ask what the property division and the support will each be worth after taxes.

More About High-Net-Worth Divorce in San Antonio

These guides cover related questions in more depth. Each one is written for Texas and Bexar County.

• Hidden assets in divorce: how concealed property is found and what the court can do about it.
• Stock options and executive compensation: dividing equity pay earned during the marriage.
• Oil, gas and mineral rights: how royalties, bonuses and delay rentals are characterized.
• Keeping a divorce private: what can be sealed and what stays public.
• Dividing an expensive marital home: when a home held by a trust or an LLC changes the cost of the case.
• Whether assets are split 50-50: how a court divides what is community property.
• Prenuptial agreement for high-net-worth couples: what to include when the agreement is signed before the wedding.
• The Texas Family Code: how the code is organized and where these rules sit.

How We Approach Spousal Maintenance

Barton & Associates has tried Texas cases since 2001, and the family law team includes Duane Graeff, our managing attorney with more than 26 years in Texas state and federal courts, and trial attorney Désirée Flye. We represent spouses who would pay and spouses who would receive, and we tell you which side we are on from the first meeting.

We start with eligibility and the property division, because they decide whether the statute offers anything and how much leverage each side has. Then we compare the statutory result with what a negotiated agreement could provide, and we write the terms so that the payments can be enforced.

Get a Real Answer for Your Specific Situation

An accurate answer needs the numbers in front of us. Our San Antonio office is at 115 Camaron Street, San Antonio, Texas 78205. You can get directions to our office before your visit. For the first meeting, bring what you can of the following, and call even if you cannot find everything.

• The date of the marriage and the date of separation
• Pay stubs, W-2s and tax returns for the last three years, and business or equity compensation records if either spouse has them
• A monthly budget for each spouse and records of current household expenses
• Education, work history and any health records that bear on the ability to work
• Statements for bank, retirement and investment accounts, and a list of real property
• Any prenuptial or postnuptial agreement
• Any existing maintenance order or settlement proposal
• Papers you have been served with, if a case has already been filed

Frequently Asked Questions

If my spouse earns millions a year, can I get more than $5,000 a month in maintenance?

Not as court-ordered maintenance. Section 8.055 caps court-ordered maintenance at the lesser of $5,000 per month or 20 percent of the paying spouse’s average monthly gross income, and the dollar figure controls once income passes $25,000 a month. A higher amount has to come from a negotiated agreement, which is contractual alimony.

Can we agree to alimony even if I don’t qualify for court-ordered maintenance?

Yes. Contractual alimony is a voluntary agreement and does not depend on the eligibility requirements in Section 8.051. The spouses can agree on the amount, the length and the events that end it. The agreement should be written clearly, because its terms are what a court will enforce.

What happens if my ex stops paying contractual alimony?

The usual remedy is a suit for breach of the agreement, not a motion for contempt. A court can enforce court-ordered maintenance, and an agreed order up to the amount and period it could have ordered, by contempt (Section 8.059), but not amounts or periods beyond that. Ask for terms that make collection easier, such as income withholding, security and attorney’s fees.

Does remarriage affect contractual alimony the same way?

Not necessarily. Court-ordered maintenance ends on the recipient’s remarriage (Section 8.056). Contractual terms are whatever the spouses agree to, so an agreement can end on remarriage, continue after it or end on other events. If the agreement does not say, the result may be disputed.

Should I push for court-ordered maintenance or contractual alimony?

It depends on what you qualify for and what matters most. Court-ordered maintenance is easier to enforce but limited in amount and duration, and you must qualify for it. Contractual alimony can be larger and can match the lifestyle, but enforcement is harder. Many settlements use both.

Who qualifies for court-ordered maintenance in Texas?

A spouse who will lack sufficient property, including separate property, to meet minimum reasonable needs and who also meets one of four conditions under Section 8.051: a family violence offense against the spouse or the spouse’s child, an incapacitating disability, a marriage of 10 years or longer with insufficient ability to earn, or custody of a child who requires substantial care because of a disability. For a marriage of 10 years or longer, the spouse must also overcome a presumption by showing diligence in earning income or developing skills (Section 8.053).

Does the court consider the lifestyle we had during the marriage?

The statute asks about the spouse’s minimum reasonable needs, and its list of factors in Section 8.052 does not include the marital standard of living. A lifestyle argument is therefore better made in settlement negotiations than as a basis for court-ordered maintenance. A spouse who wants support at a higher level should expect to negotiate for it.

Does fault or misconduct matter?

It can. Section 8.052 lists marital misconduct, including adultery and cruel treatment, wasteful spending, concealing or fraudulently disposing of property and a history or pattern of family violence among the factors a court may consider. Misconduct does not create eligibility by itself, and the cap and duration limits still apply.

Is alimony taxable?

For a divorce or separation instrument executed after December 31, 2018, the payor cannot deduct alimony and the recipient does not include it in income. Older instruments follow the earlier rule unless a later modification adopts the new one. Child support is never deductible or income. Confirm your situation with a CPA.

Can maintenance be changed after the divorce?

Court-ordered maintenance can be modified on a showing of a material and substantial change in circumstances, but the court cannot increase it beyond the original amount or duration, and a change applies only to payments accruing after the motion is filed (Section 8.057). Whether contractual alimony can be changed depends on what the agreement says.

Can a prenuptial agreement waive spousal support?

A premarital agreement may address the modification or elimination of spousal support (Section 4.003), and it is enforceable unless the party opposing it proves the agreement was not signed voluntarily or was unconscionable and that fair disclosure was not given (Section 4.006). The agreement cannot adversely affect a child’s right to support.

Talk to a San Antonio Attorney About Spousal Maintenance and Alimony

Whether you expect to pay or to receive support, the right structure depends on eligibility, the property division and the tax result. Speak with a divorce attorney in San Antonio at Barton & Associates about your income, your case and your goals before you agree to anything.

Call our San Antonio office at 210-500-0000 or complete the online Free Consultation form to schedule a confidential meeting with a family law attorney in San Antonio. The office is at 115 Camaron Street, San Antonio, Texas 78205.

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Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000

Division: Family Law San Antonio
Practice Area: Divorce & Separation
Focus Area: High-Net-Worth Divorce