By: Thompson, S. H.B. No. 33
73R1010 MJW-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to spousal maintenance after the dissolution of certain
1-3 marriages or putative marriages.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. (a) It is the intent of the legislature in this
1-6 Act to provide spousal maintenance primarily as a temporary
1-7 rehabilitative measure for a divorced spouse whose ability for
1-8 self-support is lacking or has deteriorated through the passage of
1-9 time while the spouse was engaged in homemaking activities and
1-10 whose capital assets are insufficient to provide support.
1-11 (b) It is the intent of the legislature in this Act that
1-12 spousal support should be terminated in the shortest reasonable
1-13 time, not to exceed three years, in which the former spouse is able
1-14 to be employed or to acquire the necessary skills to become
1-15 self-supporting. Only in circumstances in which the former spouse
1-16 cannot become self-supporting by reason of incapacitating physical
1-17 or mental disability should maintenance be extended beyond this
1-18 period.
1-19 SECTION 2. Chapter 3, Family Code, is amended by adding
1-20 Subchapter G to read as follows:
1-21 SUBCHAPTER G. MAINTENANCE
1-22 Sec. 3.101. Definition. In this subchapter, "maintenance"
1-23 means an award in a divorce, annulment, or suit to declare a
1-24 marriage void of periodic payments from the future income of one
2-1 spouse for the support of the other spouse.
2-2 Sec. 3.102. Eligibility for Maintenance. In a suit for
2-3 divorce or annulment or in a proceeding in a court with personal
2-4 jurisdiction over both former spouses following the dissolution of
2-5 their marriage by a court that lacked personal jurisdiction over an
2-6 absent spouse, the court may order maintenance for either spouse
2-7 only if:
2-8 (1) the duration of the marriage was 10 years or
2-9 longer;
2-10 (2) the spouse seeking maintenance lacks sufficient
2-11 property, including property distributed to the spouse under this
2-12 code, to provide for the spouse's minimum reasonable needs, as
2-13 limited by Section 3.105 of this code; and
2-14 (3) the spouse seeking maintenance:
2-15 (A) is unable to support himself or herself
2-16 through appropriate employment because of an incapacitating
2-17 physical or mental disability;
2-18 (B) is the custodian of an infant or a young
2-19 child whose physical or mental condition makes it necessary, taking
2-20 into consideration the best interest of the child, that the spouse
2-21 not be employed outside the home; or
2-22 (C) clearly lacks earning ability in the labor
2-23 market adequate to provide support for the spouse's minimum
2-24 reasonable needs, as limited by Section 3.105 of this code.
2-25 Sec. 3.103. Factors to Determine Maintenance. A court that
2-26 determines that a spouse is eligible to receive maintenance under
2-27 Section 3.102 of this code shall determine the nature, amount,
3-1 duration, and manner of periodic payments by considering all
3-2 relevant factors, including:
3-3 (1) the financial resources of the spouse seeking
3-4 maintenance, including the community and separate property and
3-5 liabilities apportioned to that spouse in the dissolution
3-6 proceeding, and that spouse's ability to meet his or her needs
3-7 independently;
3-8 (2) the education and employment skills of the spouses
3-9 and the time necessary to acquire sufficient education or training
3-10 to enable the spouse seeking maintenance to find appropriate
3-11 employment, the availability of that education or training, and the
3-12 feasibility of that education or training;
3-13 (3) the duration of the marriage;
3-14 (4) the age, employment history, earning ability, and
3-15 the physical and emotional condition of the spouse seeking
3-16 maintenance;
3-17 (5) the ability of the spouse from whom maintenance is
3-18 sought to meet that spouse's personal needs and to provide periodic
3-19 child support payments, if applicable, while meeting the personal
3-20 needs of the spouse seeking maintenance;
3-21 (6) acts by either spouse resulting in excessive or
3-22 abnormal expenditures or destruction, concealment, or fraudulent
3-23 disposition of community property, joint tenancy, or other property
3-24 held in common;
3-25 (7) the comparative financial resources of the
3-26 spouses, including medical, retirement, insurance, or other
3-27 benefits, and the separate property of each spouse;
4-1 (8) the contribution by one spouse to the education,
4-2 training, or increased earning power of the other spouse;
4-3 (9) the property brought to the marriage by either
4-4 spouse;
4-5 (10) the contribution of a spouse as homemaker;
4-6 (11) any marital misconduct of the spouse seeking
4-7 maintenance; and
4-8 (12) the efforts of the spouse seeking maintenance to
4-9 pursue available employment counseling as provided by Chapter 159,
4-10 Acts of the 65th Legislature, Regular Session, 1977 (Article 5221g,
4-11 Vernon's Texas Civil Statutes).
4-12 Sec. 3.104. PRESUMPTION. (a) Except as provided by
4-13 Subsection (b) of this section, it is presumed that maintenance is
4-14 not warranted unless the spouse seeking maintenance has exercised
4-15 diligence in:
4-16 (1) seeking suitable employment; or
4-17 (2) developing the necessary skills to become
4-18 self-supporting during any period of separation and during the
4-19 pendency of the divorce suit.
4-20 (b) This section does not apply to a spouse who:
4-21 (1) is not able to satisfy the presumption in
4-22 Subsection (a) of this section because of an incapacitating
4-23 physical or mental disability; or
4-24 (2) is the custodian of an infant or young child whose
4-25 physical or mental condition makes it necessary, taking into
4-26 consideration the best interest of the child, that the spouse not
4-27 be employed outside the home.
5-1 Sec. 3.105. DURATION OF MAINTENANCE ORDER. (a) Except as
5-2 provided by Subsection (b) of this section, a court:
5-3 (1) may not enter a maintenance order that remains in
5-4 effect for more than three years after the date of the order; and
5-5 (2) shall limit the duration of a maintenance order to
5-6 the shortest reasonable period of time that allows the spouse
5-7 seeking maintenance to meet the spouse's minimum reasonable needs
5-8 by obtaining appropriate employment or developing an appropriate
5-9 skill, unless the ability of the spouse to provide for the spouse's
5-10 minimum reasonable needs through employment is substantially or
5-11 totally diminished because of:
5-12 (A) physical or mental disability;
5-13 (B) duties as the custodian of an infant or
5-14 young child; or
5-15 (C) another compelling impediment to gainful
5-16 employment.
5-17 (b) If a spouse seeking maintenance is unable to support
5-18 himself or herself through appropriate employment because of
5-19 incapacitating physical or mental disability, the court may order
5-20 maintenance for an indefinite period for as long as the disability
5-21 continues. The court may order periodic review of its order, on
5-22 the request of either party or on its own motion, to determine
5-23 whether the disability is continuing. The continuation of spousal
5-24 maintenance under these circumstances is subject to a motion to
5-25 modify as provided by Section 3.108 of this code.
5-26 Sec. 3.106. AMOUNT OF MAINTENANCE. (a) A court may not
5-27 enter a maintenance order that requires a spouse to pay more than
6-1 the lesser of:
6-2 (1) $1,500; or
6-3 (2) 20 percent of the spouse's average monthly gross
6-4 income.
6-5 (b) The court shall set the amount that a spouse is required
6-6 to pay in a maintenance order to provide for the minimum reasonable
6-7 needs of the spouse receiving the maintenance under the order,
6-8 considering any employment or property received in the divorce or
6-9 annulment or otherwise owned by the spouse receiving the
6-10 maintenance that contributes to the minimum reasonable needs of
6-11 that spouse.
6-12 Sec. 3.107. TERMINATION. (a) The obligation to pay future
6-13 maintenance terminates on the death of either party or on the
6-14 remarriage of the party receiving maintenance.
6-15 (b) After a hearing, the court shall terminate the
6-16 maintenance order if the party receiving maintenance cohabits with
6-17 another person in a permanent place of abode on a continuing,
6-18 conjugal basis.
6-19 Sec. 3.108. Modification of Maintenance Order. (a) The
6-20 amount of maintenance specified in a court order or the portion of
6-21 a decree that provides for the support of a former spouse may be
6-22 reduced by the filing of a motion in the court that originally
6-23 entered the order. A party affected by the order or the portion of
6-24 the decree to be modified may file the motion.
6-25 (b) Notice of a motion to modify maintenance and the
6-26 response, if any, are governed by the Texas Rules of Civil
6-27 Procedure applicable to the filing of an original lawsuit. Notice
7-1 must be given by service of citation, and a response must be in the
7-2 form of an answer due at or before 10 a.m. of the first Monday
7-3 after 20 days after the date of service. A court shall set a
7-4 hearing on the motion as provided by Rule 245, Texas Rules of Civil
7-5 Procedure.
7-6 (c) After a hearing, the court may modify an original or
7-7 modified order or portion of a decree providing for maintenance on
7-8 a proper showing of a material and substantial change in
7-9 circumstances of either party. The court shall apply the
7-10 modification only to payments accruing after the filing of the
7-11 motion to modify.
7-12 (d) A loss of employment or circumstances that render a
7-13 former spouse unable to support himself or herself through
7-14 appropriate employment by reason of incapacitating physical or
7-15 mental disability that occurs after the divorce or annulment are
7-16 not grounds for the institution of spousal maintenance for the
7-17 benefit of the former spouse.
7-18 Sec. 3.109. Enforcement of Maintenance Order. (a) The
7-19 court may enforce by contempt its maintenance order or an agreement
7-20 for the payment of maintenance voluntarily entered into between
7-21 the parties and approved by the court.
7-22 (b) On the motion of a party entitled to receive maintenance
7-23 payments, the court may render judgment against a defaulting party
7-24 for an amount unpaid and owing after notice by service of citation,
7-25 answer, if any, and a hearing finding that the defaulting party has
7-26 failed or refused to carry out the terms of the order. The
7-27 judgment may be enforced by any means available for the enforcement
8-1 of judgments for debts.
8-2 (c) It is an affirmative defense to an allegation of
8-3 contempt of court or of the violation of a condition of probation
8-4 requiring payment of court-ordered maintenance that the obligor:
8-5 (1) lacked the ability to provide maintenance in the
8-6 amount ordered;
8-7 (2) lacked property that could be sold, mortgaged, or
8-8 otherwise pledged to raise the funds needed;
8-9 (3) attempted unsuccessfully to borrow the needed
8-10 funds; and
8-11 (4) did not know of a source from which the money
8-12 could have been borrowed or otherwise legally obtained.
8-13 (d) The issue of the existence of an affirmative defense
8-14 does not arise unless evidence is admitted supporting the defense.
8-15 If the issue of the existence of an affirmative defense arises, an
8-16 obligor must prove the affirmative defense by a preponderance of
8-17 the evidence.
8-18 Sec. 3.110. Putative Spouse. In a suit to declare a
8-19 marriage void, a putative spouse who did not have knowledge of an
8-20 existing impediment to a valid marriage may be awarded maintenance
8-21 if otherwise qualified to receive maintenance under this
8-22 subchapter.
8-23 Sec. 3.111. Unmarried Cohabitants. An order for maintenance
8-24 is not authorized between unmarried cohabitants under any
8-25 circumstances.
8-26 SECTION 3. (a) Except as provided by Subsection (b) of this
8-27 section, this Act takes effect September 1, 1993, and applies only
9-1 to an action filed on or after that date.
9-2 (b) This Act does not apply to an action filed on or before
9-3 January 1, 1995, if a prior suit for dissolution of a marriage
9-4 between the parties was nonsuited by the spouse seeking maintenance
9-5 on or after January 1, 1993, and on or before August 31, 1993.
9-6 (c) An action to which this Act does not apply is governed
9-7 by the law in effect at the time the action was filed, and that law
9-8 is continued in effect only for this purpose.
9-9 SECTION 4. The importance of this legislation and the
9-10 crowded condition of the calendars in both houses create an
9-11 emergency and an imperative public necessity that the
9-12 constitutional rule requiring bills to be read on three several
9-13 days in each house be suspended, and this rule is hereby suspended.