Some questions about spousal support

[lucy2003]

Hello, I'm currently going through a divorice in the state of Texas with my husband. We have been married for seven years. Over the span of our marriage he has been employed up until about a year ago. I filed for divorce from him for several reasons. The main reason being that he has not been paying his due amount in federal taxes since almost the beginning of the marriage. Under federal law I have been required to pay the taxes out of my own earnings. He has also been unemployed for the past year after being laid off and has not done much to find new work. He seems to be waiting for work to find him. This marriage is basically financially crippling me, and my attorney and family have been advising me to get out now. I was hoping that the two of us could go our own ways with as little ugliness as possible. I let him keep our house, which I am currently having to give him money to make payments on since he is unemployed, in addition to paying rent at the apartment I am currently staying at. He will also get half of my 401K that I have spent years building and to top it all off, my attorney tells me he will be demanding spousal support as well. I don't know how I can afford to pay him spousal support because all the income I have is used up between what I already pay for to help this grown man get by in life, in addition to my own living expenses.

I have been reading Texas state laws regarding spousal support but I do have a few questions:

If we have been married less than 10 years will i still be required to pay temporary spousal support?

I'm afraid also that my husband will try to use his health condition against me as he has a chronic heart condition. It does not affect his ability to get by in life, or work for that matter, but I'm afraid he will play it up in court to try to get more money. Will the court disregard this since I will be able to prove that he is a heavy smoker and constant drinker?

Also, will the issue of his tax evasion be something I can use legitimately in court to try to keep from paying him anymore than I already am?

What factor will his age play in determining eligibility and amount of temporary spousal support? He is 61 and eligible for Social Security next year. Hopefully this will work in my favor, but will the court see his age as a obstacle in him finding work?

Thanks very much for any advice offered.. I just want this ordeal to be over with with as little pain as possible, this is one of the worst things I've ever had to deal with.

[Doreen]

If you filed for divorce after 9/1/2011 which you presumably did, you would fall under new rules from Texas House Bill 901 and Chapter 8 of the Texas Family Code.

Much of those changes affect those in longer term marriages and different circumstances than yours. It changed the prior blanket maximum duration of support of 3 years. It now offers stepwise increases of 5, 7, and 10 years depending upon whether the marriage was longer than 10, 20, or 30 years. It has some other qualifiers depending upon specific circumstances.

Given you were married 7 years, and from what you have stated, in order to receive spousal support, your husband must

(1) Lack sufficient property to provide for his “minimum reasonable needs”

AND

(2) Be unable to earn sufficient income to provide for his minimum reasonable needs because of an incapacitating mental or physical disability.

So, unless he can show that his chronic heart condition is the cause for his inability earn an adequate income, it is unlikely he will be awarded spousal support.

Once a court determines that a spouse is eligible, it must consider the factors in Family Code statute 8.0502. If it comes down to this, factor 8 might arguably apply to your expenses of the alleged tax fraud. Although courts do order temporary support while the divorce is in progress, that often terminates when the divorce if final.

[url=http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.8.htm]FAMILY CODE**CHAPTER 8. MAINTENANCE[/url]

As for the 401K, your husband should only be entitled to half the value it gained since the start of your marriage.

[OHRoadwarrior]

You were not legally obligated to pay his taxes. You could have filed separately.

[lucy2003]

(1) Lack sufficient property to provide for his “minimum reasonable needs”

AND

(2) Be unable to earn sufficient income to provide for his minimum reasonable needs because of an incapacitating mental or physical disability.

So, unless he can show that his chronic heart condition is the cause for his inability earn an adequate income, it is unlikely he will be awarded spousal support.

I'm willing to let him keep our house, if he puts it on the market he could reasonably get anywhere from 400k to 500k for it, my family is hoping that this will be enough to fit the description of the term "sufficient property".

Regarding his chronic heart condition, the cardiologist who he last went to has ordered that he not smoke, not drink, and do regular exercise. He has done none of that, and additionally, the doctor stated (and I will get this in writing) that the heart condition in no way impedes his ability to work.

Regarding the issue of filing seperately, my lawyer at the time, advised that since we were married, even if I filed seperately the government could still come after me for any taxes owned by my husband since we were at the time married by law.

Thanks for the responses! I'm also looking into issues regarding seperate property as I have some land that has been in my family for generations. He is also threatening to take half of whatever profit could potentially come from development or selling off of those lands. I don't think he can do this namely because his name is not on any of the deeds, and it was my asset before we even knew each other, much less got married.

[Ohiogal]

(1) Lack sufficient property to provide for his “minimum reasonable needs”

AND

(2) Be unable to earn sufficient income to provide for his minimum reasonable needs because of an incapacitating mental or physical disability.

So, unless he can show that his chronic heart condition is the cause for his inability earn an adequate income, it is unlikely he will be awarded spousal support.

I'm willing to let him keep our house, if he puts it on the market he could reasonably get anywhere from 400k to 500k for it, my family is hoping that this will be enough to fit the description of the term "sufficient property".

Regarding his chronic heart condition, the cardiologist who he last went to has ordered that he not smoke, not drink, and do regular exercise. He has done none of that, and additionally, the doctor stated (and I will get this in writing) that the heart condition in no way impedes his ability to work.

Regarding the issue of filing seperately, my lawyer at the time, advised that since we were married, even if I filed seperately the government could still come after me for any taxes owned by my husband since we were at the time married by law.

Thanks for the responses! I'm also looking into issues regarding seperate property as I have some land that has been in my family for generations. He is also threatening to take half of whatever profit could potentially come from development or selling off of those lands. I don't think he can do this namely because his name is not on any of the deeds, and it was my asset before we even knew each other, much less got married.

So how much is the mortgage on the house? how long will it take to sell? How is he going to afford to live UNTIL it sells? Was the lawyer that advised you a tax attorney?

[lucy2003]

So how much is the mortgage on the house? how long will it take to sell? How is he going to afford to live UNTIL it sells? Was the lawyer that advised you a tax attorney?

Unfortunately there is still a substantial amount left on the mortgage, but I think if he sold off all the stuff in the house he could still walk away with several thousand dollars, not to mention what he will get from the divorce settlement and my 401k. The lawyer that advised at the beginning of our marriage was indeed a tax attorney, he suggested it would be best to file joint returns, which at the time, seemed like a good idea.

[Ohiogal]

So how much is the mortgage on the house? how long will it take to sell? How is he going to afford to live UNTIL it sells? Was the lawyer that advised you a tax attorney?

Unfortunately there is still a substantial amount left on the mortgage, but I think if he sold off all the stuff in the house he could still walk away with several thousand dollars, not to mention what he will get from the divorce settlement and my 401k. The lawyer that advised at the beginning of our marriage was indeed a tax attorney, he suggested it would be best to file joint returns, which at the time, seemed like a good idea.

Several thousand dollars? You think? Really? I am going to go with -- not going to prevent you from paying spousal support. Division of the 401k involves a QDRO which could result in a several months wait. Again, prepare because you very well may be paying spousal support for a while.

[LdiJ]

So how much is the mortgage on the house? how long will it take to sell? How is he going to afford to live UNTIL it sells? Was the lawyer that advised you a tax attorney?

Unfortunately there is still a substantial amount left on the mortgage, but I think if he sold off all the stuff in the house he could still walk away with several thousand dollars, not to mention what he will get from the divorce settlement and my 401k. The lawyer that advised at the beginning of our marriage was indeed a tax attorney, he suggested it would be best to file joint returns, which at the time, seemed like a good idea.

The tax attorney was correct because TX is a community property state. In addition, its quite rare for it to be financially beneficial for a married couple to file separately. In the vast majority of the cases it results in higher combined taxes.

Again, he is only entitled to 1/2 of the amount of your 401k that accrued during the marriage, and your premarital property is all safe as it is not considered to be community property.

He should not be keeping the house because he cannot afford to pay the mortgage payments. You won't be ordered to pay the mortgage payments AND pay him alimony. Either you should keep the house since you can afford to pay for it, or it should be sold and any proceeds divided.

[lucy2003]

He should not be keeping the house because he cannot afford to pay the mortgage payments. You won't be ordered to pay the mortgage payments AND pay him alimony. Either you should keep the house since you can afford to pay for it, or it should be sold and any proceeds divided.

He refuses to sell the house, but we think his plan is to use spousal support to pay the monthly payments on the house. I just don't have any interest in keeping the house myself. However, if I did keep the house, then I wouldn't have to pay him spousal support? I was hoping that if I gave him the house and what he's entitled to by law out of my 401 that he would be generous enough in return to walk away peacefully and not go after any spousal support, but that's not the case.

[lucy2003]

Also, I am prepared to have to pay him support, but since he is going to be eligible to collect Social Security when he turns 62 in a few months, will it be possible to negotiate a deal to stop payments once his SS income starts kicking in?

[Ohiogal]

He should not be keeping the house because he cannot afford to pay the mortgage payments. You won't be ordered to pay the mortgage payments AND pay him alimony. Either you should keep the house since you can afford to pay for it, or it should be sold and any proceeds divided.

He refuses to sell the house, but we think his plan is to use spousal support to pay the monthly payments on the house. I just don't have any interest in keeping the house myself. However, if I did keep the house, then I wouldn't have to pay him spousal support? I was hoping that if I gave him the house and what he's entitled to by law out of my 401 that he would be generous enough in return to walk away peacefully and not go after any spousal support, but that's not the case.

Keeping the house does NOT mean you wouldn't have to pay him spousal support. You can ask the court to order the house be sold and split the equity. Giving him the house? Are you on the mortgage? If so how do you expect him to refinance the house and safeguard your credit? Because the bank will expect you to pay the mortgage as long as you are on the loan.

[lucy2003]

Thankfully, my name is not on the mortgage, sorry I shouldh have said that earlier, but yes, that's also one of the reasons that he will be keeping the house.

[LdiJ]

Keeping the house does NOT mean you wouldn't have to pay him spousal support. You can ask the court to order the house be sold and split the equity. Giving him the house? Are you on the mortgage? If so how do you expect him to refinance the house and safeguard your credit? Because the bank will expect you to pay the mortgage as long as you are on the loan.

Which again, is another reason why either you should take the house or it should be sold. That mortgage is going to last MANY years longer than alimony would last, and your credit could be ruined if he cannot pay the mortgage. A party that cannot immediately make the mortgage payments out of their own income should never keep the house.

[Ohiogal]

Which again, is another reason why either you should take the house or it should be sold. That mortgage is going to last MANY years longer than alimony would last, and your credit could be ruined if he cannot pay the mortgage. A party that cannot immediately make the mortgage payments out of their own income should never keep the house.

Psst.. her name is NOT on the mortgage.

[LdiJ]

Psst.. her name is NOT on the mortgage.

I just reviewed the thread and I cannot see where she said that, but if that is the case, then the house is not her problem.