social security

iStock-1183385986-scaled A court may order Texas spousal maintenance if the spouse requesting it is not able to earn enough to provide for their own minimum reasonable needs due to an incapacitating disability. The incapacitating disability may be either physical or mental. Tex. Fam. Code 8.051. A former husband recently challenged a spousal-maintenance award, arguing that the former wife had not shown her disability was “incapacitating.”

Husband Files for Divorce

The couple separated in September 2016 and the husband petitioned for divorce in 2018. At trial, the wife testified she had fallen down the stairs in April 2016.

The wife testified she had lost her vision for several days as a result of the fall. She also experienced seizures. She was in the hospital for several days and was diagnosed with traumatic brain injury with severe memory loss. She said she had difficulty with words and processing things. She testified she recently started regaining her memory and taught herself to read again. She also testified her short-term memory had gotten better than it had been. She admitted that she could currently drive and do math with a calculator.

iStock-531351317 Texas family law considers Social Security disability benefits to be a substitute for the parent’s earnings. Pursuant to Tex. Fam. Code § 157.009, when a child receives a lump-sum payment due to the parent’s disability, the parent is entitled to a credit applied to any arrearage and interest. Additionally, when a trial court applies the child support guidelines to a parent who receives disability benefits, the court must determine how much child support would be ordered under the guidelines then subtract the value of any benefits paid to the child as a result of the parent’s disability. Tex. Fam. Code § 154.132.

The Office of the Attorney General (“OAG”) recently appealed a trial court order applying a lump sum disability payment as a credit to future child support. The trial court signed the parents’ divorce decree in 2016. The court ordered the father to pay $603.25 in monthly child support. He filed a petition for modification in 2018, asking the court to modify his child support obligations. The OAG intervened, stating he owed back child support and asking the court to enter judgment for the arrearages and accrued interest.

Father Argues He is Entitled to Future Credit for Disability Payment

The OAG stated in its brief that the father had started receiving Social Security Disability benefits and the children had received a lump sum benefit payment. The OAG contended that amount could only be used as a credit against the father’s arrearage and not for future child support. The father, however, asked the court to give him a credit against his future obligation.