Section 8.053, Spousal Maintenance Enforcement Information for your Final Divorce Order
If you ever have to enforce a spousal maintenance section in your decree awarded under Chapter 8, then you may want to add the following wording into your final order. This gives the courts something to use to enforce the award. Case law that I have read shows that the appellate courts look for sufficient evidence to support the award, or you may lose it.
Since it is a statutory rebuttable presumption in the court that neither party requires spousal maintenance, you should overcome that to support enforceability of that award. Even if you and your spouse have come to an agreement on spousal maintenance if you are going to use Chapter 8, it is better to be safe than sorry and make sure the wording in your document has evidence that the requirements in Chapter 8 have been met to justify the award of spousal maintenance under its authority.
To do this you might want to consider adding something like the following under the spousal maintenance section of the template that you are using in order to establish in the record that the requirements for awarding Chapter 8 spousal maintenance have been met. (The template that I am using to add to can be found on page 96 of the TYLA template called “Pro Se Divorce Book” relating to the award of Chapter 8 spousal maintenance.):
The Court finds that under the circumstances presented in this case, [name] is eligible for maintenance under the provisions of Texas Family Code chapter 8. Accordingly, [name] is ordered to pay as maintenance the sum of $[amount] per month to [name], with the first payment being due on the [specify] day of [month, year], and a like amount being due on the [specify] and [specify] days of each consecutive month thereafter until the earliest of one of the following events occurs:
1. [date, not to exceed three years after date of order unless statutory extensions apply];
2. death of either Petitioner or Respondent;
3. remarriage of [name of receiving party]; or
4. further orders of the Court affecting the spousal maintenance obligation, including a finding of cohabitation by [name of receiving party].
5. on motion of either party to the court to review [name of receiving party] continued eligibility and need with further orders of the Court affecting the spousal maintenance obligation including a finding that [name of receiving party] has sufficient funds or income or resources sufficient to provide for his/her minimum reasonable needs.
In accordance with Texas Family Code Section 8.051, the Court makes the following findings and conclusions regarding the spousal maintenance order made in open court in this case on [date]:
1. [name] is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability
2. Petitioner and Respondent have been married to the other spouse for 10 years or longer and [name] lacks the ability to earn sufficient income to provide for his/her minimum reasonable needs
3. [name] is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs
In accordance with Section 8.052, the Court supports the above findings and conclusions regarding the spousal maintenance order made in open court in this case on [date] by considering all relevant factors, including the following relevant factors:
(1) each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;
(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 earn sufficient income, and the availability and 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 effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
(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 contribution by one spouse to the education, training, or increased earning power of the other spouse;
(8) the property brought to the marriage by either spouse;
(9) the contribution of a spouse as homemaker;
(10) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
(11) any history or pattern of family violence, as defined by Section 71.004.
In addition, [name] has overcome Section 8.053 the presumption that maintenance was not warranted by exercising diligence in attempting to:
1. earn sufficient income to provide for his/her minimum reasonable needs during the period of separation and during the time the suit for dissolution of the marriage was pending
or
2. develop the necessary skills to provide for his/her minimum reasonable needs during the period of separation and during the time the suit for dissolution of the marriage was pending.
Challenging Spousal Maintenance Enforcement
The flip side to this is if you do not want a spousal maintenance order to be enforceable. If you are the one having to pay it and you know that the other party doesn’t qualify for it, you would not worry about there not being any supportable evidence for the award. For instance, if the two of you agree that spousal maintenance will be awarded under this section and then later you aren’t able to pay the amount and the other party won’t adjust it. The next step is the other party would bring an action in court to enforce the order.
Your Defense to Spousal Maintenance Enforcement
If you are taken to court to enforce non-payment of spousal maintenance, check the statute that the order is written under. In this particular article we are using the Texas Family Code statute as an example. For example, if the person asking the court to enforce the order has not complied with the requirements under this statute then the order may not be enforceable.
