Wednesday, August 30, 2006

Case Law Development: Incorporation of Alimony Agreement into Divorce Decree Does not Transform Contractual Alimony into Decretal Alimony

Texas is an interesting state for studying approaches to spousal maintenance.  Texas courts long held that the statutes and public policy of the state precluded courts from awarding post-divorce alimony or spousal maintenance. However, the Texas Supreme Court held that parties could agree to such awards contractually and that these alimony agreements, as with other marital property agreements, even when incorporated into divorce decrees, were enforceable as contracts and governed by contract law. 

In 1995, Texas adopted legislation authorizing alimony in only two circumstances: in instances of recent violence by one spouse against the other or in a long-term marriage in which one spouse is unable to support him or herself.  Moreover, the legislation places strict limits on the length and total amount of alimony and provides a range of circumstances which terminate alimony, including cohabitation.

In this case, Husband had agreed to alimony in excess of the term and amount allowed by statute and that agreement was incorporated into the divorce decree.  He now sought to have the alimony terminated on the statutory grounds of wife's cohabitation, even though there was no contractual agreement that alimony would be terminable on this ground.  He argued that because the district court in the original divorce decree had incorporated the agreement into the decree and had ordered the parties to do all things necessary to effectuate the agreement, this "decretal" language transformed the contractual alimony payments into court-ordered maintenance payments. The trial court disagreed and the appellate court affirmed, holding that the agreement was governed by contract law rather than the family code.  "The fact that a court expressly approves such an agreement and incorporates it into the final divorce decree does not transform contractual alimony payments into court-ordered maintenance payments subject to the termination and modification provisions of chapter 8 of the family code." 

McCollough v. McCollough, 2006 Tex. App. LEXIS 7579 (August 25, 2006)
Opinion on web (last visited August 29, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/08/case_law_develo_30.html

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