Am I entitled to spousal support since I am unable to work due to medical disability and divorcing?

Full Question:

I am currently unemployed due to medical reasons and have no means of income. I have been married for 6 1/2 years. Will I be able to receive spousal support? Also, will I have to wait until the divorce is final before he has to pay me?
05/17/2007   |   Category: Divorce ยป Alimony   |   State: Texas   |   #5021

Answer:

The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.

To receive alimony after divorce, generally you must have been married for a period exceeding 10 years, and in certain situations, you may be qualified to receive up to $2,500 per month for a maximum of three years. In determining the amount of support, the Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The Court will additionally consider the health and age of the parties, ability to work, responsibility for children, availability of funds, and the length of the marriage.

The applicable Texas statutes are as follows:

§ 8.051 FAM. Eligibility for Maintenance; Court Order

In a suit for dissolution of a marriage or in a proceeding for
maintenance in a court with personal jurisdiction over both former
spouses following the dissolution of their marriage by a court that lacked
personal jurisdiction over an absent spouse, the court may order
maintenance for either spouse only if:

(1) the spouse from whom maintenance is requested was convicted of or
received deferred adjudication for a criminal offense that also
constitutes an act of family violence under Title 4 and the offense
occurred:

(A) within two years before the date on which a suit for dissolution of
the marriage is filed; or

(B) while the suit is pending; or

(2) the duration of the marriage was 10 years or longer, the spouse
seeking maintenance lacks sufficient property, including property
distributed to the spouse under this code, to provide for the spouse's
minimum reasonable needs, as limited by Section 8.054, and the spouse
seeking maintenance:

(A) is unable to support himself or herself through appropriate
employment because of an incapacitating physical or mental disability;

(B) 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

(C) clearly lacks earning ability in the labor market adequate to
provide support for the spouse's minimum reasonable needs, as limited by
Section 8.054.

§ 8.052 FAM. Factors in Determining Maintenance

A court that determines that a spouse is eligible to receive
maintenance under this chapter shall determine the nature, amount,
duration, and manner of periodic payments by considering 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, Labor Code.

§ 8.053 FAM. Presumption

(a) Except as provided by Subsection (b), it is presumed that
maintenance under Section 8.051(2) is not warranted unless the spouse
seeking maintenance has exercised diligence in:

(1) seeking suitable employment; or

(2) developing the necessary skills to become self-supporting during a
period of separation and during the time the suit for dissolution of the
marriage is pending.

(b) This section does not apply to a spouse who is not able to satisfy
the presumption in Subsection (a) because the spouse:

(1) has an incapacitating physical or mental disability; or

(2) 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.

§ 8.054 FAM. Duration of Maintenance Order

(a) Except as provided by Subsection (b), a court:

(1) may not order maintenance that remains in effect for more than
three years after the date of the order; and

(2) shall limit the duration of a maintenance order to the shortest
reasonable period that allows the spouse seeking maintenance to meet the
spouse's minimum reasonable needs by obtaining appropriate employment or
developing an appropriate skill, unless the ability of the spouse to
provide for the spouse's minimum reasonable needs through employment is
substantially or totally diminished because of:

(A) physical or mental disability;

(B) duties as the custodian of an infant or young child; or

(C) another compelling impediment to gainful employment.

(b) If a spouse seeking maintenance is unable to support himself or
herself through appropriate employment because the spouse has an
incapacitating physical or mental disability or because the spouse is the
custodian of a child of the marriage of any age who has a physical or
mental disability, the court may order maintenance for as long as the
disability continues. The court may order periodic review of its order,
on the request of either party or on its own motion, to determine whether
the disability continues to render the spouse unable to support himself
or herself through appropriate employment. The continuation of spousal
maintenance under these circumstances is subject to a motion to modify as
provided by Section 8.057.

§ 8.055 FAM. Amount of Maintenance

(a) A court may not order maintenance that requires an obligor to pay
monthly more than the lesser of:

(1) $2,500; or

(2) 20 percent of the spouse's average monthly gross income.

(b) The court shall set the amount that an obligor is required to pay
in a maintenance order to provide for the minimum reasonable needs of the
obligee, considering employment or property received in the dissolution
of the marriage or otherwise owned by the obligee that contributes to the
minimum reasonable needs of the obligee.

(c) Department of Veterans Affairs service-connected disability
compensation, social security benefits and disability benefits, and
workers' compensation benefits are excluded from maintenance.

(d) For purposes of this chapter, "gross income" means resources as
defined in Sections 154.062(b) and (c), disregarding any deductions
listed in Section 154.062(d) and disregarding those benefits excluded
under Subsection (c) of this section.

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