Enforcement—Spousal Maintenance and Alimony
I. Enforcement Procedures—Spousal Maintenance
A court order for spousal maintenance or an agreement for periodic payments of spousal maintenance approved by the court may be enforced by a suit to enforce filed in the court that rendered the order or approved the agreement. The court may render judgment against a defaulting party for the amount of arrearages after notice by service of citation, answer, if any, and a hearing finding that the defaulting party has failed or refused to pay the spousal maintenance as ordered. That judgment may be enforced by any means available for the enforcement of judgment for debts, including by an order or writ of withholding and a maintenance qualified domestic relations order under Family Code chapter 8, subchapter H. Tex. Fam. Code § 8.059(a), (b).
No statute of limitations specifically applies to the enforcement of spousal maintenance. If the spousal maintenance is paid in accordance with an agreement, the four-year statutes governing contracts and debts may apply. “The parties agree that the four-year statute of limitations applies and that when a contract calls for fixed periodic payments, a separate cause of action accrues and a separate limitations period applies for each missed payment.” Wilson v. Wilson, No. 14-19-00767-CV, 2021 WL 2837293, at *4 (Tex. App.—Houston [14th Dist.] July 1, 2021, no pet.) (mem. op.); see also Tex. Civ. Prac. & Rem. Code §§ 16.004, 16.051.
However, if the maintenance is paid in accordance with a decree or under an agreement incorporated into a decree, it may be governed by the ten-year statute applicable to the enforcement and revival of judgments. See Tex. Civ. Prac. & Rem. Code §§ 31.006, 34.001; see also O’Carolan v. Hopper, 414 S.W.3d 288, 298 (Tex. App.—Austin 2013, no pet.) (ten-year limitation period applies to enforcement of spousal maintenance); In re Marriage of Ward, 806 S.W.2d 276 (Tex. App.—Amarillo 1991, writ denied) (only those payments due and unpaid more than ten years before filing of motion to reduce claims to judgment are barred by limitations; case decided under prior version of section 31.006 of the Civil Practice and Remedies Code).
Further, the court may issue an order or writ for withholding at any time before all spousal maintenance and arrearages are paid. See Tex. Fam. Code § 8.151.
A suit for enforcement should, in ordinary and concise language, identify the provision of the order allegedly violated and sought to be enforced, state the manner of the obligor’s alleged noncompliance, state the relief requested, and contain the signature of the obligee or the obligee’s attorney. See Tex. Fam. Code § 157.002(a).
The first numbered paragraph of the petition must include an allegation of the intended discovery level. Tex. R. Civ. P. 190.1.
§ 32.4Clear and Specific Language
The order to be enforced must spell out the details of compliance in clear, specific, and unambiguous terms so that the person subject to the order will readily know exactly what duties or obligations are imposed on him. Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding). Each obligation for which enforcement by contempt is requested must be set forth in clear, specific, and unambiguous terms. The order must clearly specify the act to be performed, together with the time and place of performance. The fact that a respondent has defeated the intent of an order is not sufficient to support contempt. The relator must have violated a command to do or not do a specific act.
The order to be enforced must be written and signed. Ex parte Wilkins, 665 S.W.2d 760, 760–61 (Tex. 1984) (orig. proceeding); Ex parte Padron, 565 S.W.2d 921, 924 (Tex. 1978) (orig. proceeding).
A court order for spousal maintenance or an agreement for periodic payments of spousal maintenance under the terms of Family Code chapter 8 voluntarily entered into between the parties and approved by the court is enforceable by contempt.
The court may not enforce by contempt any provision of an agreed order for maintenance that exceeds the amount of periodic support the court could have ordered under chapter 8 or for any period beyond the period of maintenance the court could have ordered under chapter 8. Tex. Fam. Code § 8.059(a–1). Such a maintenance obligation is punishable by contempt only if it meets the other requirements of chapter 8 of the Family Code. The Texas Supreme Court held, in In re Green, that a former husband could not be incarcerated under a contempt order for his failure to make spousal support payments based on a contractual obligation to pay “spousal maintenance” incorporated into a divorce decree, under the provision of the Texas Constitution prohibiting imprisonment for debt; alimony debt arising from a contract between the parties was a private debt, even though it was referenced in a court order. The support the former husband agreed to pay fell outside the requirements of chapter 8 of the Family Code. Although a legal obligation of support is enforceable by contempt, the promise to pay contractual alimony creates nothing more than a debt. In re Green, 221 S.W.3d 645, 648 (Tex. 2007) (orig. proceeding) (per curiam).
The case of In re L.R.P. follows the rationale in Green, stating in part, “[t]he mere fact a trial court approves a contractual spousal support agreement and incorporates it into the divorce decree does not transform the support obligation into court-ordered maintenance” subject to chapter 8 of the Family Code. In re L.R.P., No. 05-14-01590-CV, 2016 WL 514174, at *3 (Tex. App.—Dallas Feb. 5, 2016, no pet.) (mem. op.); see also Thompson v. Thompson, No. 05-16-0026-CV, 2017 WL 2871423 (Tex. App.—Dallas June 30, 2017, no pet.) (mem. op.).
A proceeding for enforcement by contempt of a spousal maintenance award may be brought in the trial court pending the appeal of such an order. In re Sheshtawy, 154 S.W.3d 114, 124–25 (Tex. 2004) (orig. proceeding).
For a comprehensive discussion of contempt proceedings, see chapter 35 in this manual.
The following affirmative defenses apply to an action to enforce spousal maintenance by contempt or the violation of a condition of probation requiring payment of court-ordered maintenance: (1) the obligor’s lack of ability to provide maintenance in the amount ordered; (2) the obligor’s lack of property that could be sold, mortgaged, or otherwise pledged to raise the funds needed; (3) the obligor’s unsuccessful attempts to borrow the amount ordered; and (4) the obligor’s lack of knowledge of a source from which to borrow or otherwise legally obtain the amount ordered. Tex. Fam. Code § 8.059(c).
The issue of the existence of an affirmative defense does not arise until pleaded. An obligor must prove the affirmative defense by a preponderance of the evidence. Tex. Fam. Code § 8.059(d).
COMMENT: There are no reported cases on the application of affirmative defenses in contractual alimony situations. Such defenses may not apply to voluntary cases, especially if the reason for the maintenance was to equalize the property settlement.
The provisions regarding the enforcement of spousal maintenance are silent with regard to the issue of a jury trial. However, the parties to an enforcement action are ordinarily not entitled to a jury. See Tex. Fam. Code § 9.005.
Concerning the availability of a jury when contempt charges are in issue, see section 35.5:2 in this manual.
§ 32.9Costs and Attorney’s Fees
There is no Family Code provision directly authorizing an award of attorney’s fees for the enforcement of spousal maintenance in a suit brought by an obligee against an obligor. However, in any proceeding to enforce a property division, the court may award costs as in other civil cases. Tex. Fam. Code § 9.013. In such a case, reasonable attorney’s fees may be awarded and may be ordered paid directly to the attorney, who may enforce the order for fees by any means available for the enforcement of a judgment for debt. Tex. Fam. Code § 9.014. Furthermore, the Texas Civil Practice and Remedies Code provides that a party may recover reasonable attorney’s fees if the claim is for a written contract. Tex. Civ. Prac. & Rem. Code § 38.001.
In a suit brought by an obligor against the obligee to recoup an overpayment of maintenance, the obligor may be awarded fees. Tex. Fam. Code § 8.0591(b). Likewise, an obligor’s employer may be liable for attorney’s fees in an action against the employer for failure to withhold maintenance pursuant to a withholding order. Tex. Fam. Code § 8.206(b)(3).
There is no statutory authority to award fees in contempt cases generally. See In re Daugherty, No. 05-18-00290-CV, 2018 WL 3031658, at *5 (Tex. App.—Dallas June 19, 2018, orig. proceeding) (mem. op.) (absent contractual or statutory basis, trial court lacks authority to award attorneys’ fees based on finding of contempt).
If a maintenance order has terminated and the obligor is not in arrears, the obligee must return any payment made by the obligor that exceeds the amount of maintenance ordered or approved by the court, regardless of whether the payment was made before, on, or after the termination date. An obligor may file suit to recover overpaid maintenance. If the court finds that the obligee failed to return overpaid maintenance, the court must order the obligee to pay the obligor’s attorney’s fees and all court costs in addition to the overpaid maintenance unless the court waives the requirement to pay attorney’s fees and court costs for good cause and states the supporting reasons in its order. See Tex. Fam. Code § 8.0591.
Concerning the right to counsel when a party is seeking to hold the other party in contempt and incarceration is a possible result of the proceedings, see sections 35.5:3 and 35.5:4 in this manual.
For a discussion of the Fifth Amendment privilege in a contempt proceeding, see section 35.5:5 in this manual.
[Sections 32.13 through 32.20 are reserved for expansion.]
II. Income Withholding for Payment of Spousal Maintenance
§ 32.21Income Withholding for Spousal Maintenance Generally
In any proceeding in which spousal maintenance has been ordered, modified, or enforced, the court may order that income be withheld from the disposable earnings of the obligor. Tex. Fam. Code § 8.101(a). Withholding may be ordered in a proceeding in which there is an agreement for periodic payments of spousal maintenance under the terms of chapter 8 of the Family Code voluntarily entered into between the parties and approved by the court. Tex. Fam. Code § 8.101(a–1).
Withholding may not be ordered to the extent that any provision of an agreed order exceeds the amount of periodic support the court could have ordered under chapter 8 or for any period of maintenance beyond the period the court could have ordered under chapter 8. Tex. Fam. Code § 8.101(a–2); see In re Marriage of Martz, No. 09-21-00048-CV, 2022 WL 2251731, at *8 (Tex. App.—Beaumont June 23, 2022, pet. filed) (mem. op.). Contractual alimony or spousal maintenance is not subject to withholding unless the contract or agreement specifically permits income withholding or the payments are not timely made under the terms of the agreement. Tex. Fam. Code § 8.101(b); see Heller v. Heller, 359 S.W.3d 902, 903 (Tex. App.—Beaumont 2012, no pet.).
An order or writ of withholding for spousal maintenance has priority over any other garnishment, attachment, execution, or other order affecting disposable earnings except for an order or writ of withholding for child support. Tex. Fam. Code § 8.105.
§ 32.22Withholding for Spousal Maintenance and Child Support
An order or writ of withholding for spousal maintenance may be combined with an order or writ of withholding for child support but only if the obligee has also been appointed managing conservator of the child for whom support has been ordered and is the conservator with whom the child primarily resides. Tex. Fam. Code § 8.101(c).
If the order or writ of withholding is for both spousal maintenance and child support, it must require that the withheld amounts be paid to the appropriate place of payment, be in the form prescribed by the attorney general’s office, and clearly indicate the amount to be applied to current spousal maintenance and the maintenance arrearages. Tex. Fam. Code § 8.101(d)(1)–(3). If an obligor is ordered to pay an obligee both spousal maintenance under Family Code chapter 8 and child support under chapter 154, the court must order payment of the maintenance to the state disbursement unit. Tex. Fam. Code § 8.062. Subject to the maximum amounts of withholding, amounts withheld must be applied, in order of priority, to (1) current child support, (2) current spousal support, (3) child support arrearages, and (4) spousal maintenance arrearages. Tex. Fam. Code § 8.101(d)(4).
§ 32.23Withholding for Arrearages
In addition to income withheld for current spousal maintenance, the court may order that income be withheld from the disposable earnings of the obligor to be applied toward the liquidation of any arrearages. Any additional amount to be withheld for arrearages must be in an amount sufficient to discharge the arrearages in not more than two years or an additional 20 percent of the amount withheld by the current maintenance order, whichever amount will result in discharging the arrearages in the least amount of time. Tex. Fam. Code § 8.102.
Once current spousal maintenance is no longer due and owing, the court may order income withholding to be applied toward arrearages in an amount sufficient to discharge those arrearages in not more than two years. Tex. Fam. Code § 8.103.
In rendering a cumulative judgment for arrearages, the court may order that a reasonable amount of income be withheld from the disposable earnings of the obligor to be applied toward the satisfaction of the judgment. Tex. Fam. Code § 8.104.
An out-of-state spousal support order can be enforced in Texas by use of a qualified domestic relations order. Even though the initial spousal support was an agreement between the parties, it became an enforceable order when given full faith and credit by Texas. The ERISA “antiassignment” provision does not apply to domestic relations orders. In Dalton v. Dalton, 551 S.W.3d 126 (Tex. 2018), the supreme court held that a wage withholding order could not be used to satisfy the former husband’s spousal-support obligations, which originated in an Oklahoma order that incorporated a separation agreement and was later filed in Texas divorce proceedings. Although Oklahoma allows wage withholding to enforce all agreed spousal-support orders, the prior agreement and court orders did not require payment of “spousal maintenance” under Texas law, because the former wife’s eligibility was never determined; rather, they required “support alimony” that falls outside Texas statutes allowing wage withholding, and the parties did not agree in the separation agreement to allow wage withholding.
§ 32.24Maximum Amount to Be Withheld
An order or writ of withholding must direct that an obligor’s employer withhold from the obligor’s disposable earnings the lesser of either the amount specified in the order or writ as spousal maintenance or an amount that, when added to the amount of income being withheld by the employer as child support, is equal to 50 percent of the obligor’s disposable earnings. Tex. Fam. Code § 8.106.
The court may issue an order or writ of withholding for spousal maintenance at any time until all spousal maintenance and any arrearages are paid. Tex. Fam. Code § 8.151. An order or writ of withholding issued in accordance with Family Code chapter 8 and delivered to an employer doing business in Texas is binding on the employer without regard to whether the obligor resides or works outside Texas. Tex. Fam. Code § 8.107. However, a writ of withholding is improper if the spousal support provision in the divorce decree falls outside Family Code chapter 8 and does not create a legal duty of support under chapter 8. Kee v. Kee, 307 S.W.3d 812, 814–15 (Tex. App.—Dallas 2010, pet. denied) (no specific reference to chapter 8 in alimony agreement, no chapter 8 criteria in decree, and no provision in agreement for enforcement by withholding). An agreement to pay postdivorce support merely restates a private debt rather than creating a legal duty imposed by Texas law.
§ 32.26Contents of Order of Withholding
An order of withholding for spousal maintenance must include—
1.the style, cause number, and court with jurisdiction to enforce the order;
2.the name, address, and, if available, the Social Security number of the obligor;
3.the amount and duration of the spousal maintenance payments, including the amount and duration of withholding for any arrearages; and
4.the name, address, and, if available, the Social Security number of the obligee.
However, if the obligee or a member of the obligee’s family or household is a victim of family violence and the subject of a protective order to which the obligor is also subject, the court may exclude the obligee’s address and Social Security number from the order of withholding. The court shall order the clerk of the court to strike the address and Social Security number of the obligee from the order and maintain a confidential record of the obligee’s address and Social Security number to be used only by the court. Tex. Fam. Code § 8.152(c).
The order must also require the obligor to notify the court of any material change affecting the order, including a change of employer. Tex. Fam. Code § 8.152(b).
§ 32.27Request for Issuance of Order or Writ of Withholding
Either an obligor or an obligee may file a request for the issuance of an order or writ of withholding with the clerk of the court. Tex. Fam. Code § 8.153.
Once the request for issuance of the order or writ is received, the clerk of the court shall deliver a certified copy of the order or writ, along with a copy of Family Code subchapter E of chapter 8, to the obligor’s current employer or to any subsequent employer. The order or writ must be delivered not later than the fourth working day after the date the order is signed or request filed, whichever is later, by either certified or registered mail, return receipt requested, to the employer, or by service of citation to either the person authorized to receive service of process for the employer or a person designated by the employer by written notice to the clerk to receive orders or notices of income withholding. Tex. Fam. Code § 8.154.
Not later than the first pay period after the date the order or writ is delivered to an employer, the employer shall begin to withhold income from the obligor’s earnings in accordance with the order. The employer must continue to withhold income as required by the order or writ as long as the obligor is employed by the employer. Tex. Fam. Code § 8.202.
The employer shall remit the amount of income withheld from the obligor to the person or office named in the order or writ of withholding on each pay date and include the date on which the income withholding occurred. Each remittance shall include the cause number of the suit under which the withholding is required, the payor’s name, and the payee’s name, unless the remittance is to be made by electronic funds transfer. Tex. Fam. Code § 8.203.
An employer may deduct an administrative fee of not more than $5 each month from the obligor’s disposable earnings in addition to the amount withheld as spousal maintenance. Tex. Fam. Code § 8.204.
An employer complying with an order or writ of withholding for spousal maintenance is not liable to the obligor for the amount of income withheld and remitted as required by the order or writ. However, an employer who receives but does not comply with an order or writ of withholding is liable to the obligee for any amount of spousal maintenance not paid in compliance with the order or writ, to the obligor for any amount withheld but not remitted to the obligee, and to the obligor or obligee for reasonable attorney’s fees and court costs incurred in recovering such an amount. Tex. Fam. Code § 8.206(a), (b).
§ 32.29Employer’s Request for Hearing
An employer receiving an order or writ of withholding may file a motion for hearing on the applicability of the order or writ to the employer. The motion must be filed with the court issuing the order or writ not later than the twentieth day after the date the order or writ is delivered to the employer. The hearing must then be held on or before the fifteenth day after the date the motion is filed. The order or writ of withholding is binding, and the employer must continue to withhold the obligor’s income and remit all amounts withheld pending further order of the court. Tex. Fam. Code § 8.205.
§ 32.30Notice of Application for Writ of Withholding
If income withholding was not ordered at the time spousal maintenance was ordered, an obligor or obligee may file a notice of application for a writ of withholding in the court that ordered the spousal maintenance. Tex. Fam. Code § 8.251.
The notice of application for a writ of withholding must be verified and (1) state the amount of monthly maintenance due, including the amount of any arrearages or anticipated arrearages, and the amount of disposable earnings to be withheld; (2) state that the withholding applies to any current or subsequent employer or period of employment of the obligor; (3) state that the obligor’s employer will be notified to begin the withholding if the obligor does not contest the withholding on or before the tenth day after the obligor receives the notice; (4) describe the procedures for contesting the issuance and delivery of a writ of withholding; (5) state that the obligor will be provided an opportunity for a hearing not later than the thirtieth day after the date of receipt of the notice of contest if the obligor contests the withholding; (6) state that the sole ground for successfully contesting the issuance of the writ of withholding is a dispute concerning the identity of the obligor or the existence or amount of the arrearages; (7) describe the actions that may be taken if the obligor contests the notice of application for a writ of withholding; and (8) include with the notice a suggested form for the motion to stay issuance and delivery of writ of withholding that the obligor may file with the clerk of the appropriate court. Tex. Fam. Code § 8.252.
Registration of an out-of-state order that provides for spousal maintenance or alimony under the Uniform Interstate Family Support Act is sufficient for filing a notice of application for a writ of withholding. Tex. Fam. Code § 8.253(a).
The party filing the notice of application for a writ of withholding shall deliver the notice to the obligor either by first-class or certified mail, return receipt requested, addressed to the obligor’s last known address or place of employment or by service of citation as in civil cases generally. If the notice is delivered by mail, the party who filed the notice shall file with the court a certificate stating the name, address, and date the party mailed the notice. The notice is considered to have been received by the obligor on the date of receipt if the notice was mailed by certified mail, on the tenth day after the notice was mailed if the notice was mailed by first-class mail, or on the date of service if the notice was delivered by service of citation. Tex. Fam. Code § 8.255.
§ 32.32Motion to Stay Issuance of Writ
The obligor may stay issuance of a writ of withholding by filing a motion to stay with the clerk of the court not later than the tenth day after the date the notice of the application for a writ of withholding was received. The grounds for filing a motion to stay issuance are limited to a dispute concerning the identity of the obligor or the existence or the amount of the arrearages. The obligor must verify that the statements of fact within the motion to stay are correct. Tex. Fam. Code § 8.256.
Once the obligor properly files a motion to stay, the clerk of the court may not deliver the writ of withholding to the obligor’s employer before a hearing is held. Tex. Fam. Code § 8.257.
The court shall set a hearing on the motion, and the clerk of the court shall notify the obligor and the obligee of the date, time, and place of the hearing, which must be held not later than the thirtieth day after the date the motion was filed unless the obligor and obligee agree and waive the right to have the hearing within thirty days. After the hearing, the court shall render an order for income withholding that includes a determination of any amount of arrearages or grant the motion to stay. Tex. Fam. Code § 8.258.
[Sections 32.33 through 32.40 are reserved for expansion.]
III. QDRO for Payment of Spousal Maintenance
§ 32.41QDRO for Payment of Spousal Maintenance Generally
The court that rendered an order for the payment of spousal maintenance, or the court that obtains jurisdiction to enforce a maintenance order, has continuing jurisdiction to render enforceable qualified domestic relations orders or similar orders (QDROs) permitting payment of pension, retirement plan, or other employee benefits to an alternate payee or other lawful payee to satisfy amounts due under the maintenance order. Tex. Fam. Code § 8.351(a).
For a discussion of the use of QDROs for payment of spousal maintenance, see chapter 25 of this manual.
[Sections 32.42 through 32.50 are reserved for expansion.]
IV. Uniform Enforcement of Foreign Judgments Act
§ 32.51Alimony Orders from Other States
A judgment of another state for the payment of alimony may be enforced in accordance with the terms of the Uniform Enforcement of Foreign Judgments Act, chapter 35 of the Texas Civil Practice and Remedies Code. A properly authenticated foreign judgment may be filed for enforcement with any Texas court of competent jurisdiction, whereupon it is treated like any other judgment of that court. See Tex. Civ. Prac. & Rem. Code §§ 35.003–.007.
Alternatively, a judgment creditor retains the right to bring an action to enforce the judgment instead of filing it under those provisions. Tex. Civ. Prac. & Rem. Code § 35.008.
Rule 308b of the Texas Rules of Civil Procedure governs the enforceability of judgments and arbitration awards based on foreign law in suits involving a marriage relationship or a parent-child relationship. The primary purpose for the adoption of this rule was to counteract the possible unfair effects of judgments and awards granted under Sharia law. When dealing with a foreign judgment related to family law, the practitioner must follow the specific notice provisions set forth in rule 308b. See Tex. R. Civ. P. 308b.
In Owens v. Owens, 228 S.W.3d 721 (Tex. App.—Houston [14th Dist.] 2006, pet. dism’d), the husband filed a motion to modify his alimony obligation under a domesticated New York divorce judgment, and the wife countered with an enforcement proceeding seeking to recover unpaid alimony due under the parties’ New York separation agreement. The trial court granted the wife summary judgment for money due under the agreement up to that date and severed the husband’s petition to modify and other issues. In reversing, the court of appeals held that, under applicable New York law, the husband’s liability would be measured by the difference between the amount provided under the agreement and the lower amount, if any, he would owe after the court ruled on his petition to modify the divorce judgment. Therefore, a ruling on the petition to modify was necessary in order to determine the actual amount owed under the agreement.