Sandra Reed’s Life Care Planning: Texas wedding vows: To love, honor and support

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your life planning questions.

By Sandra W. Reed

Spring is in the air and with it the sound of wedding bells. And those bells are ringing, not just for the young. Lots of seniors are making vows as well. With the charming promise to love, honor and cherish is the unspoken vow the law imposes – the obligation to provide support.

Who Has Duty to Support?

It used to be that in Texas a husband had a duty to provide support to his wife for the necessities in life. If, guys, you think that  with the women’s movement, and so many women in the workforce producing two-income families, you no longer have this obligation, think again.

On the other hand, gals, don’t think you are let off the hook. The duty to support was historically initiated in the state’s case law but eventually was codified into the Texas Family Code. It creates a liability to any person who provides necessaries to the spouse to whom the support is owed. Under the statute the duty to support is gender neutral.

Though the statute speaks of supporting for “necessaries,” the code does not define that term. Decisions from the cases in which spouses have sued each other regarding this support duty give guidance as to its meaning. Under these cases, “necessaries” include food, shelter, clothing and medical care.

In most cases, the duty to support a spouse is not confined to bare necessities; but it may encompass other items as well, depending upon the means and circumstances of the parties. In other words, what may not be considered “necessaries” for one husband and wife may be considered “necessaries” for another.

A case in point: Neiman-Marcus sued a divorced couple for non-payment of high-end, expensive clothing that the department store had delivered to the wife before the divorce. The court found both ex-husband and ex-wife equally responsible for the bill because, given their particular lifestyle, the items purchased were deemed “necessaries.”

Character of Property Liable for Support

Under Texas law property is characterized generally as community property or separate property. Separate property is that owned by the spouse before marriage or acquired after marriage by gift, inheritance or through compensation for any personal injury loss not due to loss of earnings or earning capacity. Community property is all property, other than separate property, acquired by either spouse during marriage.

One might conclude that only community property funds could be reached to pay for a spouse’s support.  However, that conclusion would be wrong. If there are no community funds or they have been exhausted, the spouse must pay for support of the other spouse from his or her separate property.

Temporary Spousal Support During A Divorce Proceeding

The duty of spousal support is present during any marriage, but the issue generally comes to the forefront in a divorce proceeding.  During the pendency of the divorce, the courts may order one spouse to make payments to the other spouse for necessary expenses.   The court sets the amount of the support payments based upon how destitute one spouse is and the extent of the other spouse’s ability to provide.

Spousal Support After Divorce

If all your exes live in Texas (even if they don’t if you are divorced in Texas), you might be ordered to pay support payments from your future income after the divorce to one or more of them. If you have been convicted of, or received deferred adjudication for, an act of family violence which occurred within two years before the date on which the divorce was filed or pending, the  support may be ordered regardless of whether your spouse can support himself or herself.

In the absence of a domestic violence offense, you may have to pay support to your ex if the marriage has lasted 10 years or more at the time the divorce is granted and he or she: (1) is not employable  due to incapacitating physical or mental disability; (2) is custodial parent of a child of any age who requires substantial care supervision because of an incapacitating mental or physical disability, which prevents the parent’s being employed outside the home; or (3) lacks earning ability adequate to provide support for minimal reasonable needs.

In addition, even under one of the above circumstances, your ex will have to show more than that his or her monthly needs exceed anticipated income. Rather, the former spouse must prove he or she lacks sufficient property, taking into account that awarded in the divorce, to provide his or her minimum reasonable needs.

How Much Support Do You Have to Pay? And For How Long?

The amount you pay covers your former spouse’s “minimum reasonable needs” limited by the lesser of $2,500 a month or 20 percent of your average monthly gross income. The maintenance is intended as a temporary measure to allow the spouse who is lacking in self-support capability to obtain the skills and/or education required to become self-supporting.

You will pay support for the shortest reasonable time needed. This time period will not exceed three years, unless your ex-spouse has a mental or physical disability which prevents him or her from becoming self-supporting.  In that case, the court may order the support payments to continue for as long as the disability continues.

Maintenance payments terminate if either you or your former spouse dies or if your former spouse remarries or cohabitates with another person on a continuing, conjugal basis.

What If You Don’t Pay?      

If you fail to make ordered payments, the court can find you in contempt or garnish your wages. Your ex may get a judgment against you, which can be enforced like any other debt.

The celebratory wedding bells of Texas also toll as a warning to the happy couple of their obligation to provide the necessities of life for each other.

Sandra W. Reed is an attorney practicing in Glen Rose.  She is of counsel with the Elder Law firm of Katten & Benson in Fort Worth. If you have any questions, you may contact her by phone at 254-797-0211 or by email at swreed2@yahoo.com

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>