By Thompson of Harris 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
7-22 to 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.