Incarceration Not Allowed for Alimony Default
Article I, § 18 of the Texas Constitution is unequivocal: "No person shall ever be imprisoned for debt." However, a person can be imprisoned for failure to pay child support because child support is not considered a "debt" under the law. In In re: Green, 221 S.W.3d 645 (Tex. 2007) (orig. proceeding) (per curiam), the Texas Supreme Court was faced with the issue whether contractual alimony is considered a "debt."
The Court previously had held that alimony is a debt and so could not be enforced by imprisonment upon a finding of contempt. Ex parte Hall, 854 S.W.2d 656 (Tex. 1993). But after the Court decided Hall, the legislature passed the maintenance statute, which permits a court to order spousal maintenance for up to three years if the receiving spouse is disabled, cares for a disabled child, or lacks sufficient earning ability to care for himself or herself.
The question for the Court became whether the obligation to pay any "maintenance" could be enforced by contempt resulting in imprisonment, or whether imprisonment could be a remedy only when a court ordered maintenance under the maintenance statute.
The Texas Supreme Court opted for the latter construction. Contractual alimony, even if ordered by a court, cannot be enforced by contempt resulting in imprisonment if not paid. But maintenance, if ordered in compliance with the maintenance statute, can be enforced by contempt resulting in imprisonment.
