Austin Family LawyerSpousal Rights

The Financial Aspects of a Marriage Can Be Complex and are Often a Matter of Contention Between Spouses.

It is difficult to quantify in dollars and cents what one spouse contributes to their family, especially when a spouse’s responsibilities don’t generate income. After a divorce, one spouse can be left with no income and no way to generate income, often while still bearing the same responsibilities that they had before the divorce.

It’s for this reason that spousal support is so important after a divorce. The family law attorneys at the Evans & Herlihy Law Firm can help you if you are in need of spousal support or seeking to make changes to your current payments. We realize that things can be particularly taxing in the wake of a divorce, and we make it a top priority to make sure your best interests are attended to.

Why Choose Us

Evans & Herlihy Law Firm has a proven track record of success that stretches across the Lone Star State and beyond. Our experienced Austin personal injury lawyers prioritize clients’ needs — you can rest assured that you will receive accurate and responsive counsel from our staff.

Our firm is headed by partner Chip Evans, who has over two decades of experience as a trial lawyer. He grew up in Dallas, Texas, and obtained his Bachelor’s degree in political science from Southwestern University in 1994. He then graduated from St. Mary’s University School of Law in 1997. Since 1998, Chip has focused almost entirely on helping Texas personal injury victims.

Attorney Scott Herlihy is responsible for handling all of the family law cases at Evans & Herlihy. Scott received his undergraduate degree from Southwestern University in 1992, and J.D. cum laude from St. Mary’s University School of Law in 1997. He is licensed in all Texas federal and state courts and was selected as a “Rising Star” by Texas Monthly Magazine in 2005 and 2006, an honor that less than 2.5% of attorneys under the age of 40 receive.

Scott handles a broad range of family law matters, including custody disputes, prenuptial and postnuptial agreements, spousal support disputes and enforcement, paternity cases, and grandparents’ rights. He is also:

• A member of the State Bar Family Law and Litigation Sections
• A member of the Hays County, Williamson County, and Travis County Associations
• An Austin Bar Foundation Fellow.

Client Testimonial

“MIRACLE MAN” WOULD BE AN UNDERSTATEMENT IN DESCRIBING MR. HERLIHY

My wife and I just love Scott Herlihy, he not only solved our complex legal problem, he also saved us a ton of money. We had a very complex case, one years in the making, with not only multiple child support modifications, but also with our accident victim head injured and disabled adult son as his client. We began with one attorney, who was incompetent and grossly overcharged us, ultimately botching and bailing on our case. Scott accepted us anyway, and for a very reasonable sum basically charmed the opposition and the Attorney General’s Office into modifying our son’s monthly child support and arrearage to reflect his total incapacitation over a nine-year period of back child support. “Miracle man” would be an understatement in describing Mr. Herlihy. You probably won’t realize that you have had a bad attorney, until you someday encounter a good one, as good lawyers are a very, very rare commodity. Hopefully, you will be able to begin your case with Scott, however if you need to switch counsel, upgrade to Scott Herlihy, it will be the wisest move and smartest investment that you have ever made. – Don S.

How We Can Help

Evans & Herlihy’s Austin spousal support lawyer, Scott Herlihy, can win results the size of Texas. Passionate, tenacious, and compassionate, he will thoroughly analyze your case to pinpoint the best possible course of action. Specifically, he will:

1. Help you understand Texas family laws: The Texas legal system can be daunting to navigate. Fortunately, Scott is here to help. He knows the ins and outs of Texas family court issues like the back of his hand, giving him a better chance at winning your case.
2. Provide an unbiased view of your family situation: Scott can also provide you with an unbiased impartial view of your family matter. Because he is not emotionally involved in your case, he can analyze all the details and provide accurate insight and guidance. He can tell you your rights, and give advice on what your next steps should be.
3. Offer support and counseling: As a family lawyer, Scott is not only trained to navigate the Texas law system — he can also provide you with emotional guidance and support as you navigate your divorce.
4. Help you plan for the future: Chances are, spousal support is only part of your divorce case. You may have many other divorce issues to deal with, including child custody battles. Scott can help you with all aspects of your family law case, and help you prepare for the future.
5. Save you money and time: If going to court is too expensive and emotionally taxing, Scott can help you save money by resolving the conflict out of court.

Scott always places his clients first. He takes the time to listen and understand all of your concerns and needs. He knows that dealing with the Texas legal system can be draining and stressful, so it is important to him that his clients are fully informed about their cases, have the utmost trust and confidence in him, and are comfortable with the attorney-client relationship.

If you are interested in learning more about how Scott can help you, schedule a consultation with him today by calling (512) 732-2727.

How does Spousal Support in Texas Work?

In Texas, spousal support can be court-ordered or voluntary (meaning that the two spouses agree to a predetermined amount of money).

One of the primary purposes of spousal support in Texas is to protect “non-working” spouses, who often contribute a great deal to a family. It’s for this reason that former spouses are awarded spousal support even if they do not generate actual income for the family. A homemaker, for example, may have sacrificed employment or educational opportunities to support their family. These are key considerations made by courts when awarding spousal support.

When determining how much will be paid in court-ordered spousal support, a judge will consider many factors, including the income, education and earning ability of both spouses. The judge can’t award payments exceeding 20 percent of the income generated by the paying spouse, or $5,000 a month – whichever amount is less. The judge will also consider a variety of factors to determine the duration of the payments, including the length of the marriage.

Who is Eligible to Receive Spousal Support in Texas?

Under the Texas Family Code 8.051, a spouse can quality for spousal support in one of four ways:

1. The couple was married for a minimum of 10 years, and
   • The spouse asking for support lacks sufficient property or the income to provide for their reasonable needs and
   • Is either the primary caretaker of a mentally or physically disabled child, is disabled, or lacks earning ability to provide for the reasonable needs.
2. Spouses can indicate that one party will pay spousal support to the other as part of their divorce settlement.
3. The spouse who should be paying support was convicted for a family violence offense within two years before the divorce was filed or during the course of the divorce case.
4. If a spouse is a sponsored immigrant, the parties can enforce the Affidavit of Support executed by the other spouse and request that a court order provide the immigrant spouse 125 percent of the Federal Poverty Guidelines until the immigrant spouse . . .

• Becomes a U.S. citizen or
• Earns 40 credits of work history.

Once the court determines a spouse’s eligibility, it will analyze the following factors to determine the nature of the support, duration, amount, and manner of payment:

1. Each spouse’s ability to provide for their minimum reasonable needs on their own
2. Each spouse’s employment skills and education, and the time required to acquire the necessary training or education for the requesting spouse to earn sufficient income, and the feasibility and availability of that training or education
3. The duration of the marriage
4. The employment history, age, physical and emotional state, and earning ability of the spouse seeking support
5. The effect of each spouse’s ability to provide for the minimum reasonable needs of the spouse seeking support while providing child support, if applicable
6. The property brought to the marriage by either spouse
7. The contribution by one spouse to the training, education, or increased earning power of the other spouse
8. Acts by either spouse resulting in concealment, destruction, excessive spending, or fraudulent disposal of community property
9. A spouse’s contribution as a homemaker
10. Pattern or history of family violence
11. Marital misconduct, including cruel treatment and adultery, by either spouse during the marriage.

The court may consider additional factors that show that the seeking spouse should be given spousal support. In Texas, there is a presumption that support or maintenance is not warranted unless the seeking spouse has tried their best to earn sufficient income or develop the required skills to provide for their minimum reasonable needs during separation and while the divorce case is pending.

How Long Does a Spouse Have to Pay Spousal Support?

Under Texas Family Code 8.054, there are three standards for awarding spousal maintenance:

1. An award may not remain in effect for over five years if:
   • The marriage lasted at least 10 years but less than 20 years; or
   • A spouse is awarded spousal maintenance because the other party has received deferred adjudication or has been convicted for a family violence offense while the divorce was pending or within two years before the divorce filing.
2. If the marriage lasted over 20 years but less than 30 years, the award will not remain in effect for over seven years.
3. If the marriage lasted 30 or more years, the spousal maintenance award will not remain in effect for over 10 years.

Note, however, that the court may order spousal maintenance to be in effect for longer periods of time if the spouse is a caretaker of a disabled child or unable to earn sufficient income to provide for their minimum needs due to a disability.

How Is Spousal Support Taxed In Texas?

Spousal maintenance payments ordered after 2019 are taxed the same as child support. A spouse who pays spousal support or maintenance cannot deduct these payments from their income. Payments will not be considered taxable income for the receiving spouse.

If you have additional questions about spousal support in Texas, reach out to Evans & Herlihy’s Austin spousal support attorneys today. Our experienced legal team will thoroughly analyze your case and advise you on the best path to take.

Frequently Asked Questions

Understanding your spousal support options can be difficult, especially when you are under a lot of financial and emotional stress. Here are our answers to frequently asked questions about spousal support in Texas:

Is spousal support mandatory in Texas?

No, spousal maintenance or support is not mandatory in Texas. If a spouse seeks support, the judge will ensure their situation meets the requirements established in Texas law before granting them support.

Can spouses mutually agree on spousal maintenance or support?

Yes, spouses can mutually agree on spousal maintenance or support in their divorce settlement.

How is the amount of spousal support determined?

Texas courts cannot require the paying spouse to pay more than the lesser of $5,000 or 20 percent of their total monthly income.

Can a spouse seeking payment be denied?

Yes. In Texas, the spouse seeking payments can be denied if they are not seeking employment or training that will lead to employment in the future. It is important for the spouse seeking payment to do both during the actual divorce process. Exceptions can be made for disabled spouses or spouses that will be caring for disabled children.

Can spouses modify the original spousal support court order?

Yes. Under Texas Family Code Section 8.057(a), after the divorce has been finalized, any party affected by the original order may file a motion requesting the Texas court to reduce the amount of payments. The spouse responsible for paying support must continue paying the original amount ordered while the modification is pending until the judge enters the new replacement order.

When do spousal support awards terminate?

Spousal support or maintenance awards terminate if either spouse dies or if the receiving spouse marries another person. If the receiving spouse is living with a romantic partner, the paying spouse may take the case to court, and the judge will terminate the support obligation.

Contact Evans & Herlihy Today

If you are interested in learning more about your options regarding spousal support in Texas, our Austin spousal support lawyer can evaluate your case to determine your best course of action moving forward.

Contact us today to learn how we can help you: (512) 732 2727. We also have offices in Dallas, Houston, and San Antonio.