Transcript

​​Rob McAngus: It’s a matter of, you know, proving that you have made the effort as the client seeking spousal lenience, to try and find a job to show the court, look, I have done this, this and this, and I have yet to find something that pays sufficient, where I can make it work on a month to month basis.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now here’s your host, Attorney Holly Draper,

Holly Draper: Today, we’re excited to welcome Rob McAngus to the Texas Family Law Insiders podcast. Rob has a bachelor’s degree and master’s degree from Baylor University and a law degree from Southern Methodist University. He’s a partner at Verner Brumley Mueller Parker, P.C., with offices in Dallas and McKinney, Texas.

Rob is board-certified in family law and is a fellow of both the American Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers. His practice is primarily focused on high-conflict divorces, high-asset property division, custody cases, and marital property agreements. He serves on the boards for the Texas Board of Legal Specialization, the Texas Family Law Foundation, and the Texas Academy of Family Law Specialists.

As the chair of the Texas Family Law Foundation Legislative Committee, Rob works on ensuring each bill filed in the Texas Legislature related to family law is reviewed from a family law perspective. Thank you so much for joining us today.

Rob: Thank you for having me. I appreciate it.

Holly: So why don’t you start first and just tell us a little bit about yourself.

Rob: Sure. I practice solely family law. I’ve been doing family law solely now for, I guess, 12 years. So I try to avoid and stay out of other areas, if possible. Love family law and really enjoy getting to, I guess, work with people you know when they’re going through their toughest times. Arguably, if they’re coming to see me, things aren’t going well. I like to be able to provide help and guidance through that.

Outside of that, this is a third career for me, so I’ve got a lot of gray hair for only having done family law for 12 years. But spent time in education and then technology, before doing law school, and then married and have three daughters that keep me on my toes. Two of which are in college. I’d love to have them off the payroll, if possible, but, you know, just biding my time.

Holly: So how would you describe your current practice?

Rob: Sure. Doing solely family law, I would say a majority of the clients I’ve worked with, it’s typically divorce. I do have a handful of some custody modification clients. And then outside of that, occasionally, I’ll get either appointed by the court or asked by other attorneys to serve as an amicus in family law cases. And then I’ve also mediated cases as well. And so I do some mediation, but that’s infrequent compared to primarily I practice litigation as it relates to family law.

Holly: Perfect. So before we dive in on our main topic today of spousal maintenance, I want to chat a little bit about the Family Law Foundation. You being on the board of that, I think it’s a very common thing that a lot of family lawyers don’t really understand or know about.

So hopefully this will give us a chance to explain what the foundation is and how people can get involved if that is something that interests them. So can you give us just a general overview of the Family Law Foundation?

Rob: Yeah, so we are basically an organization that exists and would love to have more members to support it. So basically, and it’s become even more important. In 2021 there was a case out of the Fifth Court of Appeals, the McDonald case. And essentially, what that case, what the Court of Appeals said is, hey, look, the State Bar and members of the State Bar cannot have any active role, basically, in affecting or dealing with legislation.

And so at that point, the foundation really became even more important for family lawyers in Texas. Now I like to sum it up as basically, the foundation is there to make sure that bad bills don’t become bad law. That’s a quick summary, but basically, through the foundation and the money that goes to the foundation, we actually have two lobbyists that work full-time for us.

They spend each legislative session basically down in Austin, hobnobbing it down there with those legislators trying to figure out, okay, hey, this bill just got filed. Oh my gosh, this is awful. We need to make sure this doesn’t pass. And then the foundation also, each session will sponsor our own bills.

And so we’ll draft some bills based on looking at what’s happened, or what we think needs to change based on input from attorneys, judges, that kind of thing. And so it’s kind of twofold. We have some bills that were like, hey, let’s see if we can pass this. But then also we look at bills and say how this would be awful.

Or maybe a bill gets filed and it’s great intention, but needs to tweak. Or there’s something because some of these bills are written by people that don’t practice family law, that got good thought behind it or good intentions behind it, but when you look at it, you say, well, what realistically, the way this is worded, this is going to cause an issue here and there kind of thing.

And so through the foundation, we have a bill review committee. That’s the thing I co-chair and head up. And so each day during the legislative session, we go through and we download every bill that’s filed, some days, hundreds and hundreds of bills. And basically, we go through and say, all right, which ones touch family law? And kind of categorize them like this one is 100% going to touch family law.

Or sometimes it’s, you know, this bill, even though it’s dealing with criminal law, this one little part of the proposed bill is going to touch family law. And so that’s maybe a priority three kind of thing. And then we assign those out to bill reviewers who are fellow attorneys. So if anybody’s interested in that, love to have more help.

And basically, we have a template that they go through and say, all right, here’s what it’s going to affect. Here’s the impact, maybe negative or positive, and then, essentially, do we want to support this? Do we want to oppose it? Do we want to just monitor it? And then that gets submitted to the foundation committee for bill review, and everybody, then there’s lawyers from all over the state can see, hey, Rob said, let’s oppose this.

And Rob’s wrong, and here’s why. We have healthy conversations. And then our folks down in Austin, then use our bill reviews potentially, when they’re going down to argue against a bill, or, hey, I’m going to go meet with this legislator Tuesday. They’re going to take these bill reviews with them and say, look, this is what you know, a family law attorney who that’s all they do.

They reviewed this bill, and here’s the problem with it. And so they use that, and sometimes they even ask for the people who’ve done the bill reviews to actually come down to Austin, maybe speak in a committee, and just be there to provide feedback, as far as that’s concerned.

So it’s a really important organization that I could go on and on about, but we’re there basically to monitor the legislation and what’s being passed and what’s being proposed kind of thing.

Holly: So if the foundation says, hey, we really need the family code changed in this particular way and you want to propose a bill. How does that work? Do you have to go shop it with legislators? Or how do you make that get on the floor?

Rob: Yep, it’s got to be sponsored by someone. Let’s say we put together a bill for whatever reason. Maybe we want to codify something that’s come out in a court of appeals or a Texas Supreme Court case. And we think, hey, we should probably propose legislation that’s going to codify that.

We’ll work together as a committee that goes through the foundation and make sure that everybody’s good with the language. And these meetings, by the way, become somewhat heated between us. Because we’ll fall on different sides of it.

But let’s say we have the draft of the bill, everybody’s good with the language, and say, hey, here’s a bill that the foundation would like to sponsor. Then yes, our lobbyists will say, okay, hey, this legislator down in Austin owes us one. Or maybe, hey, they’re really passionate about this based on their work, and I bet we can get so and so to sponsor this.

So, yeah, that’s the lobbyist’s job to go and say, all right, here are the bills we know, just the person to sponsor this, and then that way they’re the ones who put their name on it and it gets submitted.

Holly: So I ask this, semi-hypothetically, semi not hypothetically, because I have an oral argument in a case coming up in the Texas Supreme Court in October. And if, depending on what way the court rules, there’s a possibility that the protect order statute that we currently have is found not to be constitutional, at least in part. So what happens then, if an opinion like that comes out that says something pretty major about the constitutionality of our current statute, what does the Family Law Foundation do?

Rob: Well, when a client asks a question, I say, this is my favorite lawyer answer. And it depends. Sometimes, depending on what it is, if it’s something for example, you’re talking about the protective order statute, there was a lot of discussion about the protective order, the law that changed in the last legislation, quite frankly, one that, there are a lot of people’s opinions on it.

As far as, hey, look the way this is worded. There’s no really statute of limitations quite frankly, as far as the way that the wordings change. You don’t have that second prong. And so depending on something that heated, let’s say the Supreme Court comes out and changes it.

Basically said, hey, it is unconstitutional. That might be something the foundation looks at and says, hey, thank goodness, or whatever. And then maybe we make that, then a law for, it probably would be, next session, unfortunately, in two years kind of thing. Just because of where that falls. But it might be a bill that we then propose to codify that.

Holly: So if any attorneys out there listening are interested in getting involved in this process, what should they do?

Rob: They can go to the Foundation’s website. It’s texasfamilylawfoundation.com or they’re welcome to email me. If they’re interested in bill review, in particular, that’s super helpful. There were 1000s of bills filed, sometimes each day, and hundreds and hundreds of bills that touch family law.

And so there’s a certain number of people that are on the bill review committee that are kind enough to volunteer their time. And so there were points during the last legislative session where I was like, hey, I need you to review these eight bills.

Ideally, and by the way, I need you to review them in the next week. That’s not typical. We had a ton. But if there’s someone who’s interested in that, we could always use the help, is someone who would be willing to review them.

Holly: And does somebody who is interested in doing that need to become a member of the Family Law Foundation first?

Rob: We would love that. Yes, definitely have them reach out. If there’s anyone out there listening, watching that’s interested in that, by all means, be happy to chat with them more.

Holly: Perfect. So now we’re going to shift gears a little bit and dive into our more substantive legal topic today, which is spousal maintenance. And a lot of people might have seen you do a presentation on this at advance this year, and I thought it was a great topic, so that’s why I thought you might want to come on here and chat about it. So starting with pretty basic fundamentals of spousal maintenance. What is spousal maintenance and how does it differ from alimony?

Rob: Sure. So, as most attorneys know, in Texas, we don’t have alimony. But basically, spousal maintenance was created years and years ago. The legislation surrounding that to address that, basically, and say, look, some type of support if certain spouses meet certain requirements.

And so basically, it’s our version of alimony. You remember, I know, but years ago when the alimony laws changed, it used to be when I was practicing, or when we were practicing, we might do spousal maintenance, or people might agree to contractual alimony because of the tax deduction they could get based on that. Of course, once the tax laws changed, I remember it was the fastest some divorces got done because they wanted to have the decree entered before the end of the year so they could get that tax deduction.

It was worth it to them. But basically, yeah, so spousal maintenance is what we have now. You can still do contractual alimony. Parties can agree to it, but it doesn’t have that tax benefit, so therefore we’ve got spousal maintenance.

Holly: So other than an amount going over the cap or the length of time being longer, is there any other reason that somebody might do contractual alimony?

Rob: Those are the main reasons. I guess it would depend on which side of the aisle you’re on. Whether you’re representing the moneyed spouse versus the nonmoneyed spouse might dictate, hey, which of these do we want to do?

And I think the biggest thing is just, it is the time and the money, but also the enforcement part of it. If I’ve got the moneyed spouse, and this probably is rare, but I happen to represent some clients that you know are questionable.

Holly: No! We never have clients like that!

Rob: It’s only happened once or twice in my practice, but, I’m like, hey, you seem to have a hard time following orders, so if we do this, you know there’s certain consequences if you don’t pay this.

So maybe contractual alimony if the other side will agree might benefit them more, as far as at least trying to protect them down the road from from consequences if they don’t pay it. But I look at it as that’s the biggest difference, but, yeah, it really determines the amount and length of time.

Holly: So, spousal maintenance as a general rule is very hard to get in Texas, and you have to have certain specific statutory grounds to get it. So I wanted to go through those different grounds and specify exactly what is required for each of them. First one would be married a minimum of 10 years, and passing the minimum reasonable needs test. Can you talk to us a little bit about that requirement?

Rob: Sure, yeah. So 10 years is typically what I see as far as, hey, I’d like spousal maintenance. Do I qualify for it? All things being considered, the 10 years is, I would say, the most common, at least, of what the ones I’ve dealt with. And what I tell clients is that 10-year mark is one of those rare things that can actually because, you would get certain time periods or requirements in family law, but the 10-year mark can actually happen after the filing.

So it doesn’t have to be, hey, we’re married 10 years prior to filing. It just has to happen prior to the end of the case. And so, sometimes people say, hey, do I have to pay spousal maintenance? Let’s go through these different qualifications. How long have you guys been married?

For nine and a half years, okay, well, maybe right, you know, you could get the 10-year mark. Well, it’s not been 10 yet. Well, depending on how long this takes, you could hit that 10-year mark prior to the divorce itself. And so that’s the first prong to that. And of course, the second one, which is what makes it, as you said, very difficult to receive.

And I tell clients all the time, it’s very difficult to get it, because it’s that minimum reasonable needs test. When I was doing the paper for advanced, I pulled down several cases for each of these categories, and just looking at what courts have held in the past, what that means, it’s definitely a high hurdle, I guess, to make, to get that.

Our main office is in Highland Park here in the Dallas area, and so there’s a lot of high net worth folks that it’s shocking to them when I say, look, that minimum reasonable needs does not mean like, hey, what do you need to make maintain your current lifestyle. And that’s really always a tough conversation to have with a client who’s like, wait a minute. What?

Looking at, okay, can you meet your minimum reasonable needs? For, say, a spouse that has no children, or maybe their children are grown. We’re not talking about, hey, let’s get another house that’s similar to the one you live in right now, in the park cities. We’re talking about, you’re a single person, so a one-bedroom, maybe two-bedroom rental apartment.

Minimum reasonable needs like paying your utilities, groceries, car insurance, auto payment, that kind of thing. And when you look at that number, sometimes that’s, I’ve had a lot of conversations with clients where they’re responsible, what do I do? And to which I say, well, I would stay married because it’s going to be tough. It’s going to be a tough sell.

Holly: So what do you have to show to show that you lack the ability to earn a sufficient income to cover that? Because one thing I’ve always told potential clients is being a stay-at-home mom and not being able to find a job doesn’t meet that criteria. It’s are you actually capable of doing a job that will pay you enough? Yep,

Rob: Yep. A lot of the courts will look at what are you doing for that stay-at-home parent. What are they doing to prove that they’re not able to obtain that job? So I encourage my clients who are seeking spousal maintenance, look, you need to go and start applying for work. Meaning keep track of it.

Courts look at have they applied, have they updated their resume? If they have a resume. What are they doing to try and find a job? Because I tell clients, I’ve had judges before say look, and not to knock it, but you can go work at McDonald’s full time, and you can make, you know, X amount of dollars.

And the court’s going to say, all right, well, if you’re working at McDonald’s full time doing that, bottom line it, all right well, that’s not far off from what you need to make it each month. But the court’s going to weigh in factors, as far as for the stay-at-home parent, especially if you’ve got little ones. Maybe 40 hour a 40-hour-a-week job in McDonald’s, yeah, they could go get that.

Then they’re going to, what about child care, you know? And then it’s going to look at childcare is expensive, so courts will look at that as well. But really, it’s a matter of proving that you have made the effort as the client seeking spousal maintenance to try and find a job to show the court. Look, I have done this, this, and this, and I have yet to find something that pays sufficient, where I can make it work on a month-to-month basis.

Holly: What is your opinion if somebody who is seeking spousal maintenance who says, I can’t support myself sufficiently, doing whatever job I could get now, so I want to go to school to get this certification, or to get this degree and to do something to put themselves in a better position for an earning capacity in the future. What has your experience been with judges in that situation?

Rob: So looking just solely at that, because the other factor the courts are going to look at is taking into account what assets are they getting? But if we just set all that aside. Let’s just say, it’s just a matter of, hey, are they going to get spousal maintenance based on what they can earn?

A court’s going to look at and say, all right, if that’s the case for the client who says, well, I want to go, maybe get a college degree. Maybe they never did that, and they think that’s going to help. The court’s not going to ding them for it, but I think courts are going to look at all right, well, what is that going to entail cost-wise?

Because if you’re coming to the court saying, hey, I can’t afford to meet my minimum reasonable needs each month, but I’m going to go and enroll in SMU for a master’s program. Having gotten my law degree from SMU, they’re proud of their degrees as well they should be. The court’s gonna have a lot of questions.

Well, how are you affording to pay for a Master’s at SMU, if you’re saying, I can’t make ends meet by working full-time. And so courts are not going to necessarily say you can’t, they’re not going to say you can’t do that, but they might look at that and say, well, that’s all well and good, but you still need to be able to make some income, because otherwise, I think what would happen, I’m not seeing this in an opinion.

You may have. But otherwise, you would have every spouse seeking spousal maintenance, say, well, I’m going to go get my degree, because if that’s a way to all of a sudden get under there and qualify for maintenance, I think the courts see that and would be hesitant to do it.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law litigation in Collin, Denton, and Dallas counties and appeals across Texas. The Draper Firm has represented parents in cases before multiple courts of appeals and prevailed in the Texas Supreme Court in one of the biggest parental rights cases in Texas history. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So shifting on to the second statutory grounds for spousal maintenance, we have family violence. What is exactly required to get spousal maintenance under the family violence prong?

Rob: Yep. I think the biggest misconception under that is that sadly, someone who’s gone through and experienced family violence. I have a lot of clients. Let me back up, I have a lot of clients, and I’m sure you do too, again that come in and they’re Google lawyers. Well, hey, you know, I’ve only been married for three years, but my spouse was violent and I’m not taking away from that.

But so does that mean I get spousal maintenance? And I think the biggest thing is that there has to be a conviction or a deferred adjudication for family violence. And so it’s not just that family violence has occurred, but rather there’s that extra prong that, hey, they have to actually been convicted or have that deferred adjudication to qualify for it.

And it’s got to be more than just one spouse saying, hey, this other spouse did that. I think that’s the biggest misconception for a client that comes to me and then says, this has happened. And I have had that before. But the other thing to look at is if they’ve been convicted of family violence, and they come to you and say, hey, they’re in jail.

The next hard part to have is, well, yeah, okay, so you’ve met that requirement under the family violence portion of preceding maintenance, but they’re not working. I mean, they’re in jail. So, you know, it’s kind of a it’s a catch-22 with that. The one thing with family violence that you know, if you’re coming in under that requirement or that prong, they don’t have to show that.

The one good thing is they don’t have to show that they’re actively trying to improve their financial condition. So as opposed to someone who’s coming in at the 10-year prong, the minimum reasonable needs, with the family violence part of it, you don’t have to show like, hey, I’m trying to do this. I’m trying to better myself, apply for these jobs if you come in underneath that particular guideline.

Holly: And they also don’t have to prove any length of marriage requirement, right?

Rob: Correct. I think, yeah, well, yeah, just that it had occurred before two years prior to the marriage.

Holly: Okay, so somebody who’s been married for six months and has a family violence conviction or deferred adjudication, you can get spousal but if you’ve been married for 10 years and that conviction or deferred adjudication happened five years ago, too bad so sad.

Rob: Yes.

Holly: Okay, so then two more prongs, little bit similar I think, we have either the spouse’s disability or a child’s disability. So let’s start with the spouse. What do you have to prove to obtain spousal maintenance under that prong?

Rob: So basically, the court’s going to look at it as far as what exactly is that disability that would qualify you for spousal maintenance. And so there are cases out there where basically the inability to work due to that disability is what the court’s going to look at. There’s a wide range of cases out there you could look at.

One case was basically the spouse who was requesting the spousal maintenance had an aneurysm and was unable to use one of his hands. And so the court said that was sufficient, due to the fact that that disability had occurred.

There was one where the court said, yeah, that’s not enough, because the wife testified about some things that had happened, but they were undiagnosed. And the interesting thing about a spouse’s disability, is that it could just be the evidence, can just be testimony from the spouse.

Now, I would encourage any attorney whose client is seeking spousal maintenance, who’s coming in and saying, hey, I have a disability. I’m unable to work. In theory, there should be some type of medical records, or some doctor or something, or someone who has said, hey, look, here’s your condition.

You’re not able to get out there and work, and therefore you should have additional evidence. But courts said, hey, look, testimony is sufficient. I guess it really just comes down to whether or not you want to go to court based on the he said, she said, who’s more believable kind of thing. But, yeah, that’s where the courts have fallen and what they look at.

Holly: I think it really is pretty judge-specific exactly how much you’re going to have to show. I always think back on this one trial I had. It was probably 10 or 15 years ago at this point, but I was representing the husband, and the wife probably very legitimately, had a severe enough disability that she should have gotten spousal maintenance. But I was like, you mowed the lawn, right? And you built furniture, right?

And I just went through a list of things that she had done, and the attorney on the other side didn’t do the kind of follow up on those things to say, well, I mean, okay, if you mowed the lawn, were you useless for the rest of the day because you couldn’t do anything else after that. Things like that, to show that just because you did these simple tasks that were short did not mean you were incapable, or that you were capable of holding down a job.

Rob: Yeah. Yeah. Agreed. It’s definitely one you want to be prepped and ready for, especially if you have the spouse who’s claiming that disability, and on the other side too. We had a case in Fort Worth a couple of years ago where the wife, every time we went to court, would come in a wheelchair, and our client was like, look, she’s fine. I mean, yes, she’s sick, but she doesn’t need a wheelchair. I’m like, really?

So we hired a PI to follow her and we got some great videos of her leaving North Park, carrying her shopping bags and and being able to open up the car, holding all these bags and putting them in there. But then every time she came to court, she had to be in a wheelchair. Couldn’t open the door herself. That one definitely came back and bit her for sure.

Holly: I bet that was a very enjoyable cross-examination to conduct as a lawyer.

Rob: It was. One of my favorites.

Holly: Is there any type of minimum years of marriage requirement for this prong?

Rob: As far as the disability, no. You don’t need to be married 10 years. Minimum reasonable needs, again, it’s just the if you can come under the disability prong and show, look, I’m unable to work or unable to earn any type of income or enough income, quite frankly. But yeah, you can just show that particular prong and meet the requirement to obtain spousal maintenance.

Holly: What about the prong for a disabled child? What do you have to show to get spousal maintenance in that scenario?

Rob: Yep. So for a child, you have to show not only that your child is disabled, but in addition to that, you have to show that that disability that the child has necessitates substantial care or personal supervision for the requesting spouse. So it’s not just that your child’s disabled, but also that it requires you to, essentially where you can’t work.

I had one case where I represented the husband, and he actually was, had been the primary parent for their child. Mom had lots of different issues, but we were seeking spousal maintenance. The child required catheterization every couple hours due to a condition that he had.

And so my guy had to work just to be able to pay bills and everything. But also then had to employ a full-time nurse, essentially for whenever he was at work, to help with the catheterization. And so we were able to show that, yeah, the child was disabled. But also had to pay someone to do this every two hours.

This was not like, hey, I can just send the kiddo to school and hope a teacher does it. It was, it was a pretty severe disability. And so we were able to put on evidence and show that, yeah, it requires this extra care that then qualified him for spousal maintenance.

Holly: Does the disabled child have to be a minor?

Rob: No. No. It has to be a child of the marriage, but the child can be any age.

Holly: So switching gears a little bit. Talk about caps on spousal maintenance. How much gets ordered, that sort of thing.

Rob: Yep. Basically, it comes in and starts at 10 years. And so the cap, well, we’ll go with the amount first, because that’s the easiest one. The cap is $5,000 or 20% of the gross. So now capping at $5,000 so if 20% of the gross is, you know, $3,000 then that’s up to $3,000. But if you’ve got someone who’s making significant chunk of change each year, then it would stop at the $5,000 mark, as far as the amount.

And then as far as the duration, will depend on how long you’re married. And so it starts out up to five years. So if you’ve been married for at least 10 years, you can get up to five years of maintenance, and then it can go all the way up based on how long your marriage has happened.

Holly: So if you’re qualifying under either the family violence prong or one of the disability prongs, does the length of the marriage come into play in any way in the calculation or the length?

Rob: Oh, for length? No. That will basically, if you’re dealing with a disabled spouse or disabled child, no. It could continue past that amount.

Holly: What about a family violence situation?

Rob: As far as the family violence, I do believe there’s a limitation on duration, but you’re catching me, I’m not positive on that one.

Holly: I mean, I would assume that it’s different than the 10 years because you can get it less than 10 years, but.

Rob: Yeah, I don’t think that, actually family violence, I believe you can get a maximum of five years for spousal maintenance. So I said I don’t know, but I had to pull up my notes here, but yeah, five years.

Holly: So what are the different ways that spousal maintenance can be paid? Is it the same as child support? Or are there different options?

Rob: So one of the statutes that passed in 2021 interestingly enough, said that if a spouse is paying child support through the SDU, and that spouse is also ordered to pay spousal maintenance, it shall be also paid through the SDU. And so that changed with legislation several sessions ago, but otherwise, it doesn’t have to be paid through the SDU, but it can.

Holly: So if you have no children, but you’re getting spousal maintenance, you could opt to go through the SDU, but you don’t have to?

Rob: Correct. Something else that also changed in 2021 was the use of a QDRO to be able to collect spousal maintenance. You can now use a QDRO for that route as well, which I don’t think a lot of people realize. In fact, I’ll be honest, I had no idea until I did the paper myself, and I’m on the foundation.

But that was one of those that, when you’re looking at bills, and we’re trying to figure out which bills, you know, I’m looking at hundreds and hundreds, you know, whether or not something’s paid through a QDRO. I was like, all right, do we support it? Great. We’re good with that. All right, move on.

But yeah, and that can be on a temporary basis as well, which I think is something that family lawyers could really use. When you go to, and we haven’t really talked about temporary maintenance, anybody can qualify for temporary maintenance, regardless of how long the marriage. There doesn’t have to be family violence or disability or anything.

But you also have to show a source of funds from where that’s going to come. You can’t just say, hey, I need this much money per month, and maybe you don’t have bank statements or whatever.

But if you can say, look, we have a 401k, or some other qualified plan like that, we can use a QDRO then on the temporary basis even to start having spousal maintenance paid temporary. Or spousal maintenance post-divorce can be paid through a QDRO as well.

Holly: So talk a little bit about the pleading requirements in order to actually receive spousal maintenance.

Rob: Yes, so plead for sure. Make sure that it’s in your pleadings. I always feel sometimes that should be obvious, but you’d be surprised. I’m sure you know this, especially if you do a lot of appellate work. How many people just fail to put certain things in their pleadings that you think, really? Would have been helpful.

But yeah, I would definitely make sure that when you’re pleading your petition for divorce, that you put in there, that you’re requesting spousal maintenance post-divorce. And then also make sure that even if your client doesn’t qualify post-divorce, make sure and you’re pleading that you are requesting temporary maintenance as well.

But always put that in your pleading and make sure it’s in there because you don’t want to be the one who ends up in trial. And then say, well, my client wants spousal maintenance. And the judge says, well, you didn’t ask for it, because that’s just a grievance waiting to happen on the part of your client. So make sure you put it in there.

I advised people of this when I talked about it at advance, but also, here, make sure that if you’re requesting things like for a QDRO or that it go through the SDU, I would put that in your pleading and just make sure it’s in there.

I don’t know of any case out there that says, hey, this person asked for spousal maintenance but didn’t ask for it to be paid through the SDU, and the court ordered it through the SDU, therefore it was a reversible error kind of thing. But out of an abundance of caution, I would just say, hey, look, this is how I would like it to be paid. Or, you know, from one method, I would put that in your pleading as well.

Holly: So spousal maintenance can sometimes be modified. Correct?

Rob: Yes.

Holly: So under what conditions can you modify spousal maintenance?

Rob: The one thing I would say is you can modify it down, but you can’t modify it up. So the spouse who’s receiving it can’t go through and basically say, hey, I want even more. But basically, you want to make sure that you could show that, I know that courts have said that, basically, hey, there’s the material of substantial changes when you’re looking at a modification normal grounds.

And so essentially, for modifying spousal maintenance, you want to come in and show, be able to show the same thing. So if you’ve got the client who’s paying spousal maintenance and says, look, I’ve lost my job, or this has happened, or this has happened, that the court will look at, all right, what was the financial condition of the paying spouse at the time of the divorce, versus what is their position now? And where are they at, and why are they asking for that to be decreased? And so therefore they can come in under those grounds and show that.

Holly: What about terminating spousal maintenance? When can you get it terminated?

Rob: Basically, there are certain things that are grounds for terminating, as far as the death of either party. As far as you know, that could be a reason for it. That automatically ends it. However, I will say that if the person paying spousal maintenance, let’s say they pass away. It states, hey, look, spousal maintenance is terminated.

However, if they have not paid their spousal maintenance up until that point that is not terminated, so that becomes an obligation of the estate. So you’ve got the spouse is supposed to be paying maintenance. They don’t, let’s say they owe, you know, $15,000. They pass away. Yeah, their future obligation is automatically terminated.

But the spouse, who should have been receiving that can say, hey, I have a claim against the estate for that $15,000 that wasn’t paid prior to the passing away. Other things that terminate it are cohabitation of the person receiving spousal maintenance. This is a good conversation to have with your client if they’re going to perceive it as like, hey, look.

Let’s say you get spousal maintenance. You know, you’re one of the lucky folks that either gets it from the court or, you know, the spouse agrees. I would just say as much as you want to live with someone, just you need to really consider before you do that, that’s a good ground for termination of that spousal maintenance, so be real careful about that.

Holly: All right, so we’re basically out of time. But one thing I like to ask everyone who comes on the podcast is, if you could give one piece of advice to young family lawyers, what would it be?

Rob: As it relates to spousal maintenance, or just in general?

Holly: Anything.

Rob: Steal. Steal, steal, steal. And what I mean by that is, I started this when I was a baby attorney, that anytime something got filed, anytime discovery was sent to me, anytime I got a letter from opposing counsel, and I looked at it, and I thought, oh, that sounds really bad. Or, you know, meaning like my client did something, I would be like, all right, I’m stealing this letter. I’m going to take this letter and I’m going to save this.

If I got a pleading where I was like, oh, I’ll be darn. I’ve never seen that in a pleading before. I’ll steal it and I’ll save it. And I created a, and I share this with all our associates, but I have a Dropbox file where I have, it’s basically, I don’t know what I call it, but basically, anytime I’ve seen language or something used in a decree or a pleading or something, I pull that language out and I save it in a Word document, and then I save it based on title in this folder.

And I’ve got 140, 145 different files. I have one for an RSU calculation where I created it in Excel, and I just saved that. And I have one where, oh, the spouse has hacked into my client’s Facebook account. I got a letter saved that I saw a long time ago. We have an attorney that works with us.

Charlie Hodges, who, before he was here, we had a case against each other, and he sent me. He called me beforehand, and I try to do this too, but he said, hey, I’m about to send you this really special letter on what your client did. I was like, oh, I can’t wait to read it. And sure enough, it was really special.

And I’ve saved it, and we’ve used it several times since. Oftentimes I will tell I don’t do it as much now, but in the past, I called Charlie and I was like, hey, I am absolutely going to steal your letter. Thank you so much. I’m going to use this. There’s nothing that says you have to do it, but I always think, look, this was great. I think you’re full of it.

And I’m going to argue it until I’m blue in the face against it. But I am going to use this in the future, and it’s super helpful. And I think that if you’re just starting out in family law, you can learn a lot from other folks as far as things they send over. And don’t be afraid to ask. If someone were to say, hey, you sent over this PDF of this document, or whatever. If someone emailed me, I’d be like, you mind if I have the Word version?

Or do you mind, absolutely not. I’m happy to share that kind of thing, because I think that the more you do that kind of thing, and look at, especially attorneys that have been practicing a long time, you can really get a lot of knowledge and in-depth with family law just from looking at what other folks have done and what they’ve used.

And I think it’s a great way to just pull that information. And it helps you, too. I remember I saw in a pleading one time someone filed something, and I was like, I’ve never even heard of that. This was years and years ago, and it made me go out there and research it.

And I thought, oh, this is great. Let me use this. And so I say if you’re a new family law attorney, steal. Take it, because it can definitely help down the road. You never know when you’re going to need that same language or that same discovery request or whatever.

Holly: Well, I think that is very good advice. No need to reinvent the wheel over and over again.

Rob: Yep, yep.

Holly: So we’re basically out of time, but where can our listeners go to learn more about you?

Rob: Sure. They can find me on the firm’s website, vernerbrumley.com, as far as that. I’ve also got a Facebook account, LinkedIn. But, yeah, if anybody has any questions or anything like that, they’re welcome to reach out and shoot me an email. I’m happy to help to the extent I can.

Holly: Perfect. Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast, please take just a second and leave a review and subscribe to enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.