How to Pursue Contractual Alimony and the Remedies Available

Before reading this post, make sure you know if the payments are contractual alimony or spousal maintenance.  My prior post on the topic should help.

If a spouse (now ex-spouse) fails to pay contractual alimony, your remedies are the same as if they had breached any other contract.  You look for the damages you suffer, which include both the payments outlined in the decree that the ex-spouse has not paid, any foreseeable damages, and attorney’s fees.

The missed payments should be easy to figure out.  Tally up the amounts the ex-spouse has not paid.

Attorney’s fees are available through the Texas Civil Practice and Remedies Code section 38.001.

Foreseeable damages would be any additional penalties, fines, and other monetary amounts that the spouse could have foreseen you would suffer by their non-payment.  For example, if the payments were known to be used to pay a mortgage, the paying spouse failed to make multiple payments, and the mortgage was foreclosed and the house lost, you could argue any additional penalties/fees, moving expenses, and perhaps other expenses were foreseeable and should be compensated.

Some issues for the suing party to consider are whether the ex breach the entire agreement or whether the breach was only of the specific payments not made.  Things get more complicated here, since sometimes parties argue the contract was modified by different events or a pattern of past behavior, as well as the more limited breach of an installment contract versus the total breach.  If arguments like this begin to surface, consult a lawyer familiar with this topic.  It will serve you well, and in this setting, contingency fee contracts or retainer agreements are both typically available, depending on the firm.

Trying to find those text messages?

I recently had someone call to ask about getting text messages from a phone company.  This comes up often with regard to allegations of adultery, and I found the below article.

http://www.divorce360.com/divorce-articles/cheating/catching/checking-text-messages.aspx?artid=1071

The gist is that some companies keep the actual data (text) sent, but most only keep the information regarding who sent and who received those text messages.

Don’t let this stress you!  Most of the time, parties are only looking for this information to prove adultery, which can be done with other tools and methods.  Once adultery is established by evidence, the party has done all they need to do to have the Judge take that action into consideration.  Those added texts probably will not have that much more effect than the evidence already presented.

Alimony (really Court-Ordered Spousal Maintenance) Changes on the Horizon

Any blog about Texas “alimony” should first state that in Texas, courts do not order “alimony,” courts order “spousal-maintenance.”  Alimony, or post-divorce spousal payments, must be agreed to by the parties while the court may order spousal-maintenance in some situations.

In the past, Texas required a spouse to either have been married for 10 years or have suffered domestic violence within the past two years to even be considered a candidate for spousal maintenance.  Even then, maintenance was limited to three years and the lesser of $2,500.00 or 20% of the payor’s gross income.

The legislature recently changed this by re-writing maintenance section of the Texas Family Code.  These changes take effect September 1, 2011, and hit three main areas, the 10-year bar language, the duration and the amount of maintenance.

10-Year Bar

The legislature saw fit to change the language in the 10-year requirement to state the court may order maintenance if a spouse is unable to provide for their minimum reasonable needs due to an incapacitating physical or mental disability or if the spouse is taking care of a child that requires substantial care and personal supervision due to a physical or mental disability and prevents the spouse from earning sufficient income to provide for their minimum reasonable needs.  This is slightly different wording than used before and may possibly lead to a more lenient view of when spousal maintenance is appropriate.

Duration of Maintenance

1. Maintenance can now be ordered for up to five years if the marriage lasted less than 10 years and the payee was the victim of domestic violence within the past two years, has an  incapacitating physical or mental disability or if the spouse is taking care of a child that requires substantial care and personal supervision due to a physical or mental disability and prevents the spouse from earning sufficient income to provide for their minimum reasonable needs.  The five-year maximum will also apply to a marriage that lasted more than 10 years but less than 20 years.
2. If the marriage lasted between 20 – 30 years, the court can order maintenance up to 7 years.
3. Finally, if the marriage lasted 30 years or more, the court can order up to 10 years of maintenance.

Amount of Maintenance

1. The legislature also saw fit to change the maximum maintenance a court could order.  Now the amount is the lesser of $5,000.00 or 20 % of the payor’s monthly income.

Other Considerations

Attorneys and parties should keep in mind that the factors determining maintenance still apply and can be used by either side in helping the court determine if and how much maintenance is appropriate.  This includes the amount of community property that the spouses will have post divorce and if that property is enough to provide for their minimum reasonable needs with the income each will likely have.  Finally, the court retains jurisdiction to review the maintenance order and a party can file to have that order reviewed upon proper showing of a material and substantial change in circumstances of one of the parties or a child of the marriage.