Unfortunately, the state of Texas is not very kind to stay-at-home parents in divorce.  Texas is a community property state, so anything made by the working spouse during the marriage is subject to being divided (usually 50/50).  This is great if the couple has been good about saving during the marriage.  If not, the stay-at-home-parent is really going to be in a bind.

Texas does not have alimony absent an agreement for contractual alimony between the parties.  Spousal maintenance exists, but it is very hard to get.  In order to receive spousal maintenance, a stay-at-home parent would have to prove that s/he lacks sufficient property to meet his/her minimum reasonable needs and s/he meets one of four statutory bases for spousal maintenance: (1) the spouses have been married for at least ten years and s/he is incapable of earning a sufficient income to meet his/her minimum reasonable needs; (2) his/her spouse was convicted of or received deferred adjudication for a criminal offense that constituted family violence against him/her or his/her child; (3) s/he is disabled and lacks the ability to earn sufficient income; or (4) s/he must care for a disabled child, which prevents him/her from earning a sufficient income.

As you can see, the criteria above are very specific and most stay-at-home parents do not meet any of them.  Did you give up your career so your husband could take a new job?  Not a reason for spousal maintenance.  Did you give up your career because your wife made enough money to support the family and you decided together that you would stay home?  Also not a reason.  Did you giving up your career years ago to raise the children mean you can never get back into that position again?  Not a reason.

A stay-at-home parent can expect to receive child support, assuming s/he is going to be the primary parent after the divorce.  However, child support is rarely enough to support the family.  The stay-at-home parent will almost certainly need to start working in order to have sufficient income to support him/herself and his/her children.

Divorce

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As discussed in my post on alimony, Texas courts cannot order alimony unless the parties have agreed to contractual alimony.  Courts can, however, order spousal maintenance.  “Spousal maintenance” involves periodic payments from the future income of one former spouse to another.  Spousal maintenance is separate and above any child support payments that may be ordered.

Spousal maintenance is intended to support a former spouse for only a brief period of time after a divorce, until that spouse can get on his or her feet.  It also protects disabled spouses, spouses who care for disabled children, and spouses who have been the victim of domestic violence.

In my experience, I have found that courts do not like to award spousal maintenance, and it can be extremely difficult to obtain.  In order to qualify, you must establish (1) that you lack sufficient property to provide for your minimum reasonable needs, and (2) that you meet one of the statutory requirements for spousal maintenance.

Whether or not you have sufficient property to provide for your minimum reasonable needs is determined on a case-by-case basis, and courts have generally found evidence of expenses (rent or mortgage payments, car payments, insurance payments, etc.) as evidence of the amount of minimum reasonable needs.  The court will consider the spouse’s monthly income and the amount of the spouse’s property in determining whether or not the spouse qualifies.

There are four statutory bases for spousal maintenance, and you must qualify under one of these provisions.   They are:  (1)  the parties have been married for 10+ years and one spouse has an inability to earn a sufficient income; (2) one spouse has been convicted of or received deferred adjudication for a criminal offense that constituted family violence against the other spouse or that spouses’ child within the past two years; (3) one spouse is disabled and lacks the ability to earn sufficient income; or (4) one spouse must care for a disabled child, which keeps that spouse from earning sufficient income.

Divorce

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Alimony involves court-ordered payments paid by one former spouse for the support of the other.  Potential divorce clients regularly inquire about their ability to receive alimony.  Except for spousal maintenance, Texas courts are not authorized to order alimony.  However, parties can agree to alimony payments as part of an agreement incident to divorce.  By approving the agreement in the court’s decree, the court is not ordering prohibited alimony.

If the parties agree to contractual alimony, one spouse will pay the other a certain amount of money each month.  If that spouse does not pay, the other party’s only recourse is to sue the former spouse for breach of contract.

Spousal maintenance differs from the standard idea of alimony in that it is generally only allowed for a short period of time and it is only available in very limited situations.

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