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 in order to give the courts something to use to enforce the award because case law that I have read shows that the appellate courts look for sufficient evidence to support the award.
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
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
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.
Then continue with the rest of your template language, for instance the language regarding who the payments will be made to, the writ of withholding to the employer, etc., as found on page 97 of TYLA’s template that I posted on a previous blog.
I posted this because I am afraid that you might have enforceability issues if you only use the language in the current TYLA template. From my personal experience, I have found that the more you show that you covered the requirements of a section that you are trying to enforce, the more likely you will be able to enforce your contract.
This might also cut down on legal fees later down the road and could make it easier for you to enforce your contract pro se later on. Simplifying the process now and handling the details up front make any conflict down the road much easier to resolve.
This post is just a suggestion. Remember I am not an attorney or a licensed professional. I post things from personal experiences and observations and research. I am not trying to replace your legal counsel. I hope this helps you reduce problems in the future and prevent confusion or conflict down the road.
**Note for those of you that already have a final divorce decree, the statutes that apply to your decree are the ones that were in force at the time your decree was entered unless the statutes specify otherwise. I used the most current statutes updated September 1, 2011 for this post found at http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.8.htm#8.051 .
Regular spousal maintenance does not require any qualifications so you do not need this if you are just agreeing to alimony.
**If spousal maintenance is being awarded against a spouse that has committed family violence and was convicted of it you would need to add wording that complies with Section 8.051 regarding those facts. The wording from the statute is as follows:
Sec. 8.051. 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 the spouse seeking maintenance will lack sufficient property, including the spouse's separate property, on dissolution of the marriage to provide for the spouse's minimum reasonable needs and:
(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, as defined by Section 71.004, committed during the marriage against the other spouse or the other spouse’s child 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