The History of Alimony in Texas and the New "Spousal Maintenance" Statute
Paulsen, James W., Texas Journal of Women and the Law
James W. Paulsen
What I am going to do is talk about the new Texas alimony statute.' To out-of-staters, it is kind of odd to think of alimony as being an emerging issue in family law. But, folks, this is Texas! It is the fiftieth state in the Union, a century and a half or so after most other states, to adopt alimony. For us, it is an emerging issue. It is new. What I am going to do, first of all, is explore why it took Texas so long to adopt the idea of permanent alimony. Basically, it is because alimony has been considered to be against public policy. I am going to dissect that for a few minutes and see exactly how that came about, and you are going to see that it is not history; it is folklore. Secondly, I am going to talk about the history of the legislative attempts to get alimony into existence. Third, I will discuss the finally successful legislative attempt. Fourth, I am going to explore a couple of constitutional issues that arise with the new legislation. Then, at the very end, I am going to suggest something completely different-an end run around the entire statute, whereby practitioners can try and get themselves into the law books.
It has been suggested that alimony is against public policy in Texas, and we really do not have to engage in much speculation as to why. The Texas Supreme Court has told us exactly why. Alimony has been against the public policy of Texas since 1841. The basic reason behind it is that alimony is incompatible with the community property system. Now, you do not have to be much of an historian to figure out that some of that does not sound very sensible. After all, there are a number of other community property jurisdictions in the country, and they all have alimony. We are the only state that has found alimony incompatible with the community property system. But 1841, which is the year picked by the Texas Supreme Court for saying when the prohibition started, does give a clue as to how the whole problem came about. In that year, the second divorce statute was passed in the state of Texas. What happened is this: The Texas legislature provided for permanent divorce and it provided for alimony pending divorce, but there was a blank spot in the statute. It did not say anything about alimony after divorce. Therefore, the reasoning of the courts has been that what is not expressed in the legislation is, by implication, prohibited.
In the process of preparing for this speech, I was up in Austin, and, actually by happenstance, I found the bill, the original December 1840 alimony bill, that became law in 1841. I also found the original draft of that law, and what it shows is something a whole lot different than what we have been assuming. What the original bill had was two kinds of divorce-what we would call today permanent separation or separation from bed and board, and permanent divorce. In the process of legislative redrafting, they decided to take out permanent separation, making it just a permanent divorce statute. The trick is this: Neither the provision for permanent separation in the original bill nor the provision for permanent divorce in the original bill said a word about alimony. It was a very liberal women's rights oriented bill, at least as women's rights liberalism was thought of at that time. We would consider it at the far right end today, but it was far left then. Neither of them provided for alimony. It would have been insane for the legislature to say that you can be separated for the rest of your life-legally married, still as husband and wife-but there is no continuing duty to support. Continuing support is what permanent separation is all about. It is the main distinction between permanent separation and divorce. The Texas legislature had to be assuming that courts, in cases of permanent separation, would read the legislation and realize that a provision for permanent separation carried with it a provision for permanent maintenance. Likewise, since alimony accompanying the grant of power for permanent divorce was well established in 1840, we should also be reading the provision for permanent divorce as having, by implication, carried with it the power to grant permanent alimony. The notion that the January 1841 legislation somehow is a public policy prohibiting alimony is an historical falsehood.
In addition, we have become accustomed to thinking in twentieth century terms, and common law terms, about the power of Texas courts. Let me take you back for a little while to the 1830s. Pick up any textbook, and you will be told that the only way a court can grant a permanent divorce is if the court has legislative authority. I have got news for you; in Texas, courts were granting permanent divorces with no legislative authority. Why? They thought it was in their inherent power. Marriage is a contract. Courts have always had common law and equitable powers in the field of contracts. When breach of contract occurs, damages can be awarded. In breach of the marriage contract, we call those damages alimony. That is why, after the 1841 statute went into existence, there are court decisions from the early days saying, "That is nice that the legislature passed a bill confirming the powers we know we already have." It is absolute twentieth century nonsense to consider the 1841 legislation as having any restrictive effect whatever on judicial power to avoid alimony.
Well, the practicing lawyers may say, "That is well and good, but I will never be able to prove that unless I can give a case citation." Let us try a couple. Fits v. Fins,2 in the 1850s; it is a great case. Oliver Fitts wants to marry Nancy. She has a smart father. He knows that Oliver has a bad reputation for being a drunk, so he makes a deal. Before he will let his daughter Nancy marry Oliver, Oliver has to sign over all of his property to Nancy. Every bit of it, except for a few slaves and a little bit of land. Oliver does so. Then he goes on a week-long drunk; I am interpreting the facts a little bit liberally. The father comes back again when Oliver comes crawling back to Nancy. The father says, "Sign over all the rest of your property." Oliver does so. Then he again stumbles. Nancy is not forgiving this time, and she gets a divorce on fault grounds. How do you divide the property? He has given everything he owns to Nancy; it is her separate property. There are no community assets. He has no separate assets. The result in Fitts was that Chief Justice John Hemphill ordered a number of slaves to be placed in the hands of trustees, with a fifth of the income of the earnings from those slaves to be delivered to Oliver on a periodic basis for the remainder of his natural life. The decision did not use the word alimony, but, I would ask you, what else can you call it? It is just husband alimony. By the way, that opinion was described by the Texas Supreme Court in the 1970s as a child support decision. Under those facts, folks, who do you think got the kids? Not Oliver.
Let me give you another case: Wiley v. Wiley, in 1870.3 A wife divorced her husband, who had called her many filthy names, which the court said were just terrible, but were not set out in the opinion. At the trial level, the court gave her something like thirty dollars a year, for two or three years. An appeal was taken in the case to the Texas Supreme Court, which reverses. Why? Family law lawyers in the audience will say, "That was an award not tied to the division of property; therefore, it looks like alimony, and we know it is illegal." Wrong result. The Texas Supreme Court ruled that the trial court had abused its discretion and that the wife was entitled, in fact, to one hundred dollars per year for life, or until remarriage. The court did not use the word alimony, but the court reporter who did the headnotes called it alimony.
So, why do we not know about those cases? Well, it was about ten years before John West and the West headnotes system came along, and we did not have pocket parts at the time. The only guy who was doing digests in the state at that time had done A-C before the opinion issued, but did D-F after the opinion issued. You can find Wiley in the D-F under divorce, but you cannot find it in A-C under alimony. And it just disappeared. The only time Wiley has ever been cited is in a U.S. Supreme Court decision in the 1930s or 40s, in which the Court said, in effect, "We understand the Texas courts have a public policy prohibiting alimony, and I guess that is the way it is. That Wiley sure is a funny decision though."
How, then, did we get the notion that alimony is contrary to public policy in Texas? By accident and carelessness-accident, in that the cases that I have told you about just slipped through the cracks, and carelessness in judicial drafting. If you take the half dozen or so Texas Supreme Court decisions that say alimony is contrary to Texas public policy4 and look at what they cite, then look at what those decisions cite and so on, until you get back to the very first opinion that says it, what you see is a progression in language. Ignorant of prior case law awarding alimony, the common law steeped courts, around the turn of the twentieth century in Texas, started saying, "We find no legislative authority for alimony. The public policy of this state does not endorse alimony. The public policy of this state does not sanction alimony. Alimony is against the public policy of this state." That is all it is. Courts copy other court opinions, accidentally changing the language. So what originally was courts just saying, "There is a blank spot in the statute books where we would expect something," becomes a myth-that somewhere out there, there is deep-seated hostility to alimony for some great public policy reason. No, there is nothing there. There never has been anything there. There is just an unfortunate phrase that caught on. In fact, the first court opinion to say that alimony is contrary to public policy was reversed within ten years. It was an Austin Court of Appeals decision, reversed by the Texas Supreme Court on its principal ruling in the subsequent case. But the language took on a life of its own. That is why reformers, thinking that alimony was not possible through the court system, turned their attention to the legislature.
It is easy to talk about the history of the legislative efforts. It goes like this. At least since 1971, every two years there was an attempt to pass an alimony statute in the Texas legislature. For the last half dozen times it was tried, it would be taken to the Senate, which would approve alimony by an absolutely lopsided vote, then it would go to the House, where it would disappear. It would be sent to a committee and forgotten or placed on the calendar so that it just could not get to the floor in time to be heard, or it would be ruled out of order on a point of order. There was never, at any point, a House vote against alimony. I have yet to find a single witness in a single legislative session to ever speak against alimony. The Texas House of Representatives just became a black hole.
The year 1993 is a pretty good example. Representative Senfronia Thompson of Houston proposed an alimony bill in the house. It was sent to the House Calendars Committee. The rumors started coming out that the Calendars Committee was not going to act favorably. Representative Thompson said, in public, "If that happens, may the shards of that glass ceiling pierce those cold-hearted men whose greed has held us down for far too long." The chairman of the committee, responding, said, "That bill will be reported out favorably or may shards of glass pierce my heart." Two weeks later, it was reported out unfavorably, in a ten to one vote. The only woman on the committee was the one vote in favor of the bill. The chairman survived.
The year 1995 started the same way as every other session. By this time, Senator Chris Harris, who had sponsored the bill many times in the Senate, had just given up. He did not even bother to introduce the bill. Representative Thompson's bill got sent to an unfavorable committee to die. Then one day, in floor debate on a welfare bill, after fifty amendments had been debated and a number of rather strange amendments had been adopted as being germane to the welfare bill, Representative Thompson rose, pointed out the fact that forty-two percent of Texas homemakers are on welfare within two or three years after divorce, and said that she thought a good way to cut down on welfare would be by having alimony in Texas. Caught completely by surprise, the Speaker of the House ruled that the amendment, perhaps, was germane, and the House, in the first time there had ever been a House vote on alimony, voted the amendment favorably, although no one wanted to go on the record.
Now the bill was in the Senate. For the first time, patterns had changed. The Senate had always been where alimony was favorable, but when the Senate welfare bill came up, for some reason that, frankly, I just have not been able to discover, alimony just disappeared. The alimony provision just disappeared from the Senate bill. The Senate welfare bill got to the floor. Chris Harris, by this time, was reenergized. He proposed the same amendment that Senfronia Thompson had proposed in the House. It did, in fact, pass on the record vote, and it was signed into law by Governor Bush. The record vote, by the way, contained about twice as many negative votes as I have ever known of the Senate to vote negative on an alimony bill. Of course, this time it was for real, and the House could not be counted on to vote it down. I could give you examples to justify the claim that the history of legislation on alimony, over the twenty-five year period up until the point of eventual passage, was dictated by sexist considerations, but, frankly, it would not be interesting to do so. There appears to be pretty much universal consensus that that is the reason a limited alimony bill had never passed the Texas legislature.
Let me give you a few of the top features of the new statute. You must have a marriage of more than ten years to preliminarily qualify, plus no earning capacity or sufficient property set aside in the divorce.5 Alternatively, you can have been badly beaten by your spouse.6 Support is capped at the lesser of the spouse's minimum necessary needs, $2500 per month, or twenty percent of the paying spouse's average income.7 Along with all those restrictions, alimony is only permitted for a threeyear maximum period.8
It was said at the time that Texas would have one of the most restrictive bills in the country. What some people did not realize is that because the alimony bill had been refined for nearly twenty years, by adding successive restrictions to try to get someone to take it seriously, Texas ended up with not only the most restrictive alimony in the nation, but with the most restrictive alimony in the nation in each one of those three areas. There is no other state in the Union, at least not any that I have been able to find, that has a marriage duration requirement in order to qualify for alimony. There is only one state, Louisiana, that puts an absolute income cap on alimony.9 Of course, there are a number of states that, by judicial decisions, say it has to be reasonable, and Louisiana says no more than one-third of income, so we are still in undisputed first place. Although there are several states that say alimony should be for a reasonable length of time or the minimum time necessary to let the exspouse get on his or her feet-a couple of states say about ten years, one state says 121 months-the state of Indiana comes the closest to matching Texas in that area, in that it also allows rehabilitative maintenance for only a three-year period.lo I was going to call it a tie, but then I noticed that right after that provision in the Indiana statutes, it also says that if a spouse puts the other spouse through college, that spouse can get a refund of half of the tuition and book fees." This, I think, gives Indiana a slight edge over the Texas statute.
Now the question can be this: After all that attention paid to gathering together the most restrictive provisions of any other single state, adding to them, and putting them together in one bill, did we, in the process, miss anything? And I must report that the Texas legislature did not do its job. We do not, as do several states, absolutely prohibit alimony on proof of adultery. We simply make it a factor.iz We do not, as does Louisiana, say that the spouse seeking alimony must be free of all fault. We do not, as does one state, cut off alimony on proof of having given birth to a child with someone else. We say cohabitation on a continuing conjugal basis can be a reason for cutting off alimony,13 but we did miss a few minor provisions. All in all, particularly with the provision that the only modification possible to an alimony payment is downward, we can hold up our heads and say that we have produced a statute that, indeed, is unique, and that Texas still retains its position of being in fiftieth place on the general subject of alimony, even though you have to do a little bit more analysis to get to that conclusion today.
I will now address the constitutional questions. First, is the statute, overall, constitutional? I raise the question because it has come up several times in light of the supposed public policy prohibition on alimony that goes back so far and because of a couple of Texas Supreme Court decisions in the 1970s which held that the courts could not divest a spouse's separate property because that somehow would be akin to alimony and, thus, would be unconstitutional. Yes, the bill is constitutional. There are obviously no federal problems, or one of the other forty-nine states would have encountered them by this point. The easiest way to express the constitutionality of alimony is that it has nothing at all to do with the community property system or the community property provision in the constitution. Alimony is postdivorce, at a time when there is no separate or community property anymore, just your property and my property. And it is not tied to the division of any property, separate or community property. Thus, it is simply a non-issue. I would also give an analogy to tort judgments, which now can be obtained in the process of divorce. We have not heard anyone yelling and screaming about the possibility of a tort judgment being recovered from a spouse's separate property. We are simply talking about a different type or area of law here.
Let me give a flip side to the constitutionality argument. Is the tenyear marriage duration minimum period for receiving alimony constitutional? I will just throw out a few facts. Fact one: Texas Fathers for Equal Rights is really worried about the possibility of a constitutional challenge. Fact two: As I have already said, no other state in the country has a ten-year marriage minimum to qualify for alimony. Fact three: I cannot think of any rational reason for it, can you? Fact 4, and I think the most interesting fact: When asked on the Senate floor, "Senator Harris, why do you have this ten-year restriction?," he said, "I don't know; that is a good question." Question: "You really don't know?" Answer: "No, why don't we just say it is arbitrary and capricious." Question: "Arbitrary and capricious?" Answer: "Yes, arbitrary and capricious." Very interesting legislative history, is it not? Court interpretations, of course, are almost completely nonexistent, probably reflecting the fact that the statute is so restrictive that we have very few instances of such alimony actually being awarded. I was flattered to be cited by the San Antonio Court of Appeals; I was not flattered about the context in which I was cited. The San Antonio Court of Appeals said, "We must construe the alimony statute as strictly as possible, given the long-standing history of male bias that made it so difficult to get the statute passed." I really wish the San Antonio Court of Appeals had said, "Of course we cannot consider that legislative history, particularly in light of the Texas Equal Rights Amendment." If the San Antonio court had been looking in the right direction, it would have found that there are uncodified legislative history provisions, and they are pretty much as bad as anything the San Antonio court was doing. It is a restrictive statute.
I promised I would give an alternative. My alternative is quite simple, and it is not simply my alternative. It has been proposed since the late 1970s. For those of you who are fans of Professor Castleberry, he thinks it would work. Joe McKnight of Southern Methodist University thinks it would work. So, what is it? Let me give you an analogy. You have a client who has been badly battered by her husband for years, and she is now filing for a divorce. Do you (a) ask the trial judge for a disproportionate division of property, (b) ask for limited alimony, or (c) file a tort suit and take everything in the world the husband has, including a personal judgment for the future? Well, of course, you can include more than one of those options, but the tort law suit is what should be first in the mind of most family law practitioners. If there is any property there, if there is any future earning potential there, a lawsuit is what we would do.
By analogy, what should you do if the spouse has made, in public, a lifetime commitment of support, in the context of marriage vows, and has now opted out on that? We would call that a breach of contract suit, which, since there has been a general abrogation in Texas of the interspousal tort immunity doctrine, also could be brought in the context of divorce. The only problem you would have is various provisions, including the Statute of Frauds. Let us say that agreements touching upon marriage or touching upon agreements for alimony must be in writing. That would rule out common law marriages. But for any marriage in Texas that is entered into ceremonially, you do have a contract in writing. We call it the marriage license, signed by both parties. Can you integrate it with other memoranda as you could do in any Statute of Frauds situation? Yes. It is usually signed by the minister. If you are lucky, Jewish marriages have a written marriage contract, usually in Hebrew. Other folks getting married, particularly the rich, have nice little brochures made up as a keepsake, which contain all the vows and are sometimes even signed by the parties.
Now the problem is that this would more likely happen in circumstances where the spouse seeking alimony is not particularly needy. The only lawsuit I have known to ever have been brought on this theory was in Harris County over a decade ago. The wife won at the trial level. There was a major panic among the bar, and the case settled. I wonder: What would happen in the Texas legislature if the courts actually came out with rulings saying that one can collect alimony as damages for breach of contract? My prediction: The legislature would suddenly find it in its interest, for public policy purposes, to adopt an alimony statute that is much more generous and much more open, and which precludes common law remedies. In any event, if you ever get the right sort of client or want to do a crusade for public policy, I suggest that you think about that.
1. See Tax. FAM. CODE ANN. (sec)(sec). 8.001-.011 (West 1998).
2. 14 Tex. 443 (1855).
3. 33 Tex. 358 (1870).
4. See, e.g., Stubbe v. Stubbe, 733 S.W.2d 132, 133 (Tex. 1987); Eichelberger v. Eichelberger, 582 S.W.2d 395, 402 (Tex. 1979).
5. Sec TEX. FAM. CODE ANN. 8.002.
6. See id.
7. See id. 8.006.
8. Sec id. 8.005.
9. See LA. Clv. CODE ANN. art. 112 (West 1993 & Supp. 1998).
10. See IND. CODE ANN. 31-15-7-2 (West Supp. 1997).
11. See id. 31-15-7-6.
12. See TEX. FAM. CODE ANN. 8.003(11).
13. See id. 8.007(B).
Professor of Law, South Texas College of Law. B.A., Wake Forest University; J.D., University Of Georgia.…
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Publication information: Article title: The History of Alimony in Texas and the New "Spousal Maintenance" Statute. Contributors: Paulsen, James W. - Author. Journal title: Texas Journal of Women and the Law. Volume: 7. Issue: 2 Publication date: Spring 1998. Page number: 151+. © University of Texas, Austin, School of Law Publications, Inc. Fall 1998. Provided by ProQuest LLC. All Rights Reserved.
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