When clients seek our help in a divorce case, questions about alimony often are top of mind. Whether they are seeking a first-time decision on alimony or modification to an existing alimony, they often want to know whether alimony is based on current income. Both spouses involved in the divorce must complete paperwork that proves their current financial situation, including any income they currently have. The court then bases the alimony award on this information.
When a client is wondering whether alimony is based on current income, it often occurs because either our client or our client’s ex-spouse recently had a significant change in income. This change could affect alimony calculations. In a situation like this, our spousal support lawyer may be able to seek a new alimony judgment based on the new levels of income for either spouse or for both spouses.
How to Qualify to Seek a Change in Alimony Payments
Many times, when our clients are wondering about how current income status affects alimony payments, it is because of a change in income for either the spouse making the payments or the spouse receiving the payments. Our clients then want to know if they can adjust the level of alimony. If you are paying spousal support and you suddenly have a significant drop in income or a significant increase in expenses, you may be able to request a new alimony judgment. Additionally, if the spouse receiving spousal support has a significant increase in income, the court might award a new spousal support judgment.
Texas allows changes in spousal support through the rules set forth in Texas Family Code Title 5. However, it is not easy to convince the court to hear your petition for a change in alimony. The law states that the change to income must be “material and substantial” before the court can consider making a change to alimony awards. The law does not lay out specifics about what “material and substantial” means, leaving courts with quite a bit of leeway in deciding whether to hear a case.
Ultimately, the party seeking the modification in alimony must prove that the change is material and substantial. Our legal team will study the facts in your case to help you determine whether a new hearing is possible. We then help you by collecting a significant amount of information about the income changes to justify requesting a new alimony hearing before the court.
What Qualifies a Spouse for Spousal Support?
Courts in Texas consider a number of factors when determining what qualifies a spouse for spousal support payments, according to Texas Family Code § 8.053. Primarily, the court will be trying to determine whether both spouses can continue to have a quality of life close to what they had during the marriage.
During the original divorce settlement, either spouse can make a request to receive alimony. In Texas, the court then determines whether one spouse does not have enough income to be able to provide for that spouse’s quality of life, as compared to the other spouse. If so, that is the first factor to qualify a spouse for alimony. That spouse then has to meet at least one other factor to be able to qualify for spousal support, including:
- Earning capability: If the qualifying spouse has almost no chance to see an increase in income in the future because of physical disability or mental disability, alimony is possible.
- Length of marriage: If the marriage lasted at least 10 years, and the qualifying spouse didn’t work during the marriage, this shows an inability to earn an appropriate level of income without more training or education.
- Supervision of a child: If the qualifying spouse is the custodial parent of a child with disabilities who requires regular care, this affects the qualifying spouse’s ability to earn income.
- Abuse conviction: If the qualifying spouse or the couple’s children were victims of abuse at the hands of the other spouse, this could result in the court’s awarding alimony.
Negotiating Spousal Support
It is also possible that you and your ex-spouse can come to an agreement about what type of alimony payments should occur. The courts then may verify that the agreement is fair to both parties. Negotiating a settlement gives us a guaranteed outcome, which may be preferrable to allowing the court to make a judgment.
What Factors Affect Spousal Support?
Texas courts consider numerous factors that affect spousal support judgments. Some of the items the court will look at when deciding whether to give one spouse an alimony judgment include:
- Amount of income available to the spouse to meet basic needs
- Whether the spouse has the educational background to seek a job that provides financial independence
- Whether the spouse has the employment training to seek a job that provides financial independence
- Whether the spouse contributed to the other spouse’s education
- Whether the spouse destroyed or wasted marital property during the marriage
- Whether the spouse served as a stay-at-home parent or cared for the household, rather than working.
In addition, the length of the marriage affects the length of time alimony payments occur. Spousal support payments typically can last 5 to 10 years. If the marriage lasted at least 30 years, payments could last 10 years, for example. If the marriage lasted less than 10 years, though, payments may only last for up to five years.
Is Spousal Support Based on Net or Gross Income?
As we are discussing divorce cases and alimony with our clients, some of them wonder whether spousal support is based on net or gross income. Texas considers gross income in the calculation of spousal support. Net income is not part of the consideration.
Texas places a cap on the amount of alimony that the court can order. This cap is based on gross income, not on net income. The cap is either 20% of the gross monthly income of the spouse making the payments or $5,000 per month, whichever is smaller. Some of the items that qualify as gross income in the eyes of Texas courts include:
- Hourly wages
- Overtime wages
- Salary
- Commissions
- Tips
- Bonuses
- Royalties
- Dividends
- Wages from self-employment
- Severance pay
- Pensions
- Retirement benefits
- Trust income
- Unemployment benefits.
Gross income is what you earn before any payroll deductions occur, such as for taxes and employment benefits. Net income is the amount remaining after such deductions. Texas focuses on gross income because the number of employment benefits can vary quite a bit from job to job, which greatly affects net income.
Let Amsberry Law Help You Determine Whether Your Current Alimony Is Accurately Based on Current Income
Because the state of Texas doesn’t agree to adjust alimony payments without a compelling reason to do so, it is important for our team to do some research on any request for a change in alimony before we submit a petition to the court. Based on the information, we then will try to predict whether the court will agree to hear the case because the change in circumstances is material and substantial.
Contact Amsberry Law today at (210) 354-2244 to discuss your reasons for seeking a change in alimony payments.
Attorney Russell J.G. Amsberry
Attorney Russell J.G. Amsberry founded the Amsberry Law Firm in 1995 with the goal of providing clients with exceptional, focused representation on their issues. His success as a legal advocate has been reflected in the numerous professional honors he has received, such as speaking engagements and inclusion in Scene in SA magazine’s listing of the best lawyers in San Antonio, a Distinguished rating from Martindale-Hubble, and an amazing rating from Avvo. [ Attorney Bio ]
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