By Thompson of Harris H.B. No. 2621 Substitute the following for H.B. No. 2621: By Thompson of Harris C.S.H.B. No. 2621 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. It is the intent of the legislature in this Act 1-6 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 and whose capital assets are insufficient to provide support. 1-10 SECTION 2. Chapter 3, Family Code, is amended by adding 1-11 Subchapter E to read as follows: 1-12 SUBCHAPTER E. MAINTENANCE 1-13 Sec. 3.80. DEFINITION. In this subchapter, "maintenance" 1-14 means an award, in a suit for divorce, annulment, or to declare a 1-15 marriage void, of periodic payments from the future income of one 1-16 spouse for the support of the other spouse. 1-17 Sec. 3.81. ORDER FOR MAINTENANCE OF OTHER PARTY. In a 1-18 judgment of dissolution of marriage, whether by divorce, annulment, 1-19 or suit to declare a marriage void, the court may order a party to 1-20 pay for the maintenance of the other party an amount, for a period 1-21 of time, that the court determines is just and reasonable, based on 1-22 the standard of living established during the marriage, and the 1-23 court shall consider all of the following circumstances: 2-1 (1) the extent to which the earning capacity of each party 2-2 is sufficient to maintain the standard of living established during 2-3 the marriage, taking into account all of the following: 2-4 (A) the marketable skills of the party to receive 2-5 maintenance; the job market for those skills; the time and expenses 2-6 required for the party receiving maintenance to acquire the 2-7 appropriate education or training to develop those skills; and the 2-8 possible need for retraining or education to acquire other, more 2-9 marketable skills or employment; 2-10 (B) the extent to which the present or future earning 2-11 capacity of the party seeking maintenance is impaired by periods of 2-12 unemployment that were incurred during the marriage to permit the 2-13 party seeking maintenance to devote time to domestic duties; 2-14 (2) the extent to which the party seeking maintenance 2-15 contributed to the attainment of an education, training, a career 2-16 position, or a license by the party from whom maintenance is 2-17 sought; 2-18 (3) the ability to pay of the party from whom maintenance is 2-19 sought, taking into account the earning capacity, earned and 2-20 unearned income, assets, and standard of living of the party from 2-21 whom maintenance is sought; 2-22 (4) the needs of each party based on the standard of living 2-23 established during the marriage; 2-24 (5) the obligations and assets, including the separate 2-25 property, of each party; 3-1 (6) the duration of the marriage; 3-2 (7) the ability of the party seeking maintenance to engage 3-3 in gainful employment without unduly interfering with the interests 3-4 of dependent children in the custody of the party; 3-5 (8) the age and health of the parties; 3-6 (9) the immediate and specific tax consequences to each 3-7 party; 3-8 (10) any other factors the court determines are just and 3-9 equitable. 3-10 Sec. 3.82. EXAMINATION BY VOCATIONAL TRAINING COUNSELOR, 3-11 ORDER; PAYMENT OF EXPENSES AND COSTS. (1) In a suit for divorce, 3-12 annulment, or to declare a marriage void, the court may order a 3-13 party to submit to an examination by a vocational training 3-14 counselor. The examination shall include an assessment of the 3-15 party's ability to obtain employment based upon the party's age, 3-16 health, education, marketable skills, employment history, and the 3-17 current availability of employment opportunities. The focus of the 3-18 examination shall be on an assessment of the party's ability to 3-19 obtain employment that would allow the party to maintain herself or 3-20 himself at the marital standard of living. 3-21 (2) The order may be made only on motion, for good cause, 3-22 and on notice to the party to be examined and to all parties. The 3-23 order shall specify the time, place, manner, conditions, scope of 3-24 the examination, and the person or persons by whom it is to be 3-25 made. 4-1 (3) A party who does not comply with an order under this 4-2 section is subject to a finding of contempt of court, sanctions, or 4-3 other penalties under the Texas Code of Civil Procedure. 4-4 (4) "Vocational training counselor" for the purpose of this 4-5 section means an individual with sufficient knowledge, skill, 4-6 experience, training, or education in interviewing, administering, 4-7 and interpreting tests for analysis of marketable skills, 4-8 formulating career goals, planning courses of training and study, 4-9 and assessing the job market, to qualify as an expert in vocational 4-10 training under the Texas Rules of Evidence. 4-11 (5) A vocational training counselor includes a certified 4-12 rehabilitation counselor, a licensed professional counselor, a 4-13 master of social work, or a psychologist, and shall have at least 4-14 the following qualifications: 4-15 (A) a master's degree in social work, psychology, 4-16 counseling, or other behavioral science; 4-17 (B) be qualified to administer and interpret 4-18 inventories for assessing career potential; 4-19 (C) demonstrated ability in interviewing clients and 4-20 assessing marketable skills with understanding of age constraints, 4-21 physical and mental health, previous education and experience, and 4-22 time and geographic mobility constraints; 4-23 (D) knowledge of current employment conditions, job 4-24 market, and wages in the indicated geographic area; and 4-25 (E) knowledge of education and training programs in 5-1 the area with costs and time plans for these programs. 5-2 (6) The court may order the party from whom maintenance is 5-3 sought to pay, in addition to spousal maintenance, the necessary 5-4 expenses and costs of the counseling, retraining, or education. 5-5 Sec. 3.83. FINDINGS OF COURT; STANDARD OF LIVING DURING 5-6 MARRIAGE; OTHER CIRCUMSTANCES. In a suit for divorce, annulment, 5-7 or to declare a marriage void, the court shall make specific 5-8 factual findings with respect to the standard of living during the 5-9 marriage, and, at the request of either party, the court shall make 5-10 appropriate factual determinations with respect to other 5-11 circumstances. 5-12 Sec. 3.84. RETROACTIVE APPLICATION OF ORDER. An order for 5-13 spousal maintenance in a suit for divorce, annulment, or to declare 5-14 a marriage void may be made retroactive to the date of filing the 5-15 notice of motion or order to show cause, or to any subsequent date. 5-16 Sec. 3.85. ORDERS FOR CONTINGENT PERIODS OF TIME; 5-17 TERMINATION; NOTIFICATION. (1) If a court orders spousal 5-18 maintenance for a contingent period of time, the obligation of the 5-19 party from whom maintenance is sought terminates on the happening 5-20 of the contingency. The court may, in the order, order the party 5-21 seeking maintenance to notify either the party from whom 5-22 maintenance is sought or his or her attorney of record, of the 5-23 happening of the contingency. 5-24 (2) If the party seeking maintenance fails to notify either 5-25 the party from whom maintenance is sought or his or her attorney of 6-1 record, of the happening of the contingency and continues to accept 6-2 spousal maintenance payments, the party seeking maintenance shall 6-3 refund payments received that accrued after the happening of the 6-4 contingency, except that the overpayments shall first be applied to 6-5 spousal maintenance payments that are then in default. 6-6 Sec. 3.86. TERMINATION OF SPOUSAL MAINTENANCE ORDER; 6-7 EXTENSION OF ORDER. An order for spousal maintenance terminates at 6-8 the end of the period provided in the order and shall not be 6-9 extended unless the court retains jurisdiction in the order or 6-10 under Section 3.87. 6-11 Sec. 3.87. RETENTION OF JURISDICTION; APPLICATION OF 6-12 SECTION. (1) Except on written agreement of the parties to the 6-13 contrary or a court order terminating spousal maintenance, the 6-14 court retains jurisdiction indefinitely in a suit for divorce, 6-15 annulment, or to declare a marriage void, where the marriage is of 6-16 long duration. 6-17 (2) For the purpose of retaining jurisdiction, there is a 6-18 presumption affecting the burden of producing evidence that a 6-19 marriage of 10 years or more, from the date of marriage to the date 6-20 the parties cease to live together as husband and wife, is a 6-21 marriage of long duration. However, the court may consider periods 6-22 of separation during the marriage in determining whether the 6-23 marriage is in fact of long duration. Nothing in this subdivision 6-24 precludes a court from determining that a marriage of less than 10 6-25 years is a marriage of long duration. 7-1 (3) Nothing in this section limits the court's discretion to 7-2 terminate spousal maintenance in later proceedings on a showing of 7-3 changed circumstances. 7-4 (4) This section applies a suit for divorce, annulment, or 7-5 to declare a marriage void filed on or after September 1, 1993. 7-6 Sec. 3.88. TERMINATION OF SUPPORT ORDER; DEATH; REMARRIAGE. 7-7 Except as otherwise agreed by the parties in writing, the 7-8 obligation of a party under an order for the maintenance of the 7-9 other party terminates upon the death of either party or the 7-10 remarriage of the party receiving spousal maintenance. 7-11 Sec. 3.89. ENFORCEMENT OF ORDER; ORDER OF RESORT TO 7-12 PROPERTY. In the enforcement of an order for spousal maintenance, 7-13 the court shall resort to the property described below in the order 7-14 indicated: 7-15 (1) the earnings, income, or assets of either spouse, while 7-16 living separate and apart from the other spouse, which would have 7-17 been community property if the spouse had not been living separate 7-18 and apart from the other spouse; 7-19 (2) the community property; 7-20 (3) the quasi-community property; 7-21 (4) the other separate property of the party required to 7-22 make the maintenance payments. 7-23 Sec. 3.90. SECURITY FOR PAYMENT. The court may order the 7-24 party obligated to make maintenance payments to give reasonable 7-25 security for payment of spousal maintenance. 8-1 Sec. 3.91. PAYMENTS TO COUNTY OFFICER. In any proceeding 8-2 where a court enters or has entered an order requiring the payment 8-3 of spousal maintenance, the court may direct that payment shall be 8-4 made to the county officer designated by the court for that 8-5 purpose. The court may include in its order made pursuant to this 8-6 section any service charge imposed by the county officer for 8-7 collection and distribution of the payments. 8-8 Sec. 3.92. REFERRAL OF ENFORCEMENT TO ATTORNEY GENERAL; 8-9 ENFORCEMENT PROCEEDINGS. (1) In any proceeding where the court 8-10 has entered an order pursuant to Section 3.91, the court may also 8-11 refer the matter of enforcement of the spousal maintenance order to 8-12 the Attorney General. The Attorney General may exercise discretion 8-13 and bring such enforcement proceedings as the Attorney General 8-14 determines to be appropriate. 8-15 (2) Notwithstanding subdivision (1), in any case in which 8-16 the Attorney General is required to appear on behalf of a recipient 8-17 of Aid to Families with Dependent Children ("AFDC") in a proceeding 8-18 to enforce an order requiring payment of child support, the 8-19 Attorney General shall also enforce any order requiring payment to 8-20 the AFDC recipient of spousal maintenance that is in arrears. 8-21 (3) Nothing in this section shall be construed to prohibit 8-22 the Attorney General from bringing an action or initiating process 8-23 to enforce or punish the failure to obey an order for spousal 8-24 maintenance under any provision of law which empowers the Attorney 8-25 General to bring such an action or initiate such a process, whether 9-1 or not there has been a referral by the court pursuant to this 9-2 chapter. 9-3 Sec. 3.93. NEEDS OF SPOUSE SEEKING MAINTENANCE; ANNUITY, 9-4 LIFE INSURANCE, OR TRUST; MODIFICATION OR TERMINATION OF ORDER. 9-5 (1) For the purpose of Section 3.81(1)-(10), where it is just and 9-6 reasonable in view of the circumstances of the parties, the court, 9-7 in determining the needs of a spouse seeking spousal maintenance, 9-8 may include an amount sufficient to purchase an annuity for the 9-9 spouse seeking maintenance or to maintain insurance for the benefit 9-10 of the spouse seeking maintenance on the life of the spouse 9-11 required to pay maintenance, or may require the spouse required to 9-12 pay maintenance to establish a trust to provide for the maintenance 9-13 of the spouse seeking maintenance, so that the spouse seeking 9-14 maintenance will not be left without means of maintenance in the 9-15 event that the spousal maintenance is terminated by the death of 9-16 the spouse required to make the payment of maintenance. 9-17 (2) Except as otherwise agreed to by the parties in writing, 9-18 an order made under this section may be modified or terminated at 9-19 the discretion of the court at any time before the death of the 9-20 party required to make the payment of maintenance. 9-21 Sec. 3.94. PUTATIVE SPOUSE. In a suit to declare a marriage 9-22 void, a putative spouse who did not have knowledge of an existing 9-23 impediment to a valid marriage may be awarded maintenance if 9-24 otherwise qualified to receive maintenance under this subchapter. 9-25 Sec. 3.95. UNMARRIED COHABITANTS. An order for maintenance 10-1 is not authorized between unmarried cohabitants under any 10-2 circumstances. 10-3 SECTION 3. (a) Except as provided by Subsection (b) of this 10-4 section, this Act takes effect September 1, 1993, and applies only 10-5 to an action filed on or after that date. 10-6 (b) This Act does not apply to an action filed on or before 10-7 January 1, 1995, if a prior suit for dissolution of a marriage 10-8 between the parties was nonsuited by the spouse seeking maintenance 10-9 on or after January 1, 1993, and on or before August 31, 1993. 10-10 (c) An action to which this Act does not apply is governed 10-11 by the law in effect at the time the action was filed, and that law 10-12 is continued in effect only for this purpose. 10-13 SECTION 4. The importance of this legislation and the 10-14 crowded condition of the calendars in both houses create an 10-15 emergency and an imperative public necessity that the 10-16 constitutional rule requiring bills to be read on three several 10-17 days in each house be suspended, and this rule is hereby suspended.