By: Harris of Tarrant, Wentworth S.B. No. 424
A BILL TO BE ENTITLED
AN ACT
1-1 relating to spousal maintenance after the dissolution of certain
1-2 marriages or putative marriages.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. (a) It is the intent of the legislature in this
1-5 Act to provide spousal maintenance as a temporary rehabilitative
1-6 measure for a divorced spouse whose ability for self-support is
1-7 lacking or has deteriorated through the passage of time and whose
1-8 capital assets or other resources or income are insufficient to
1-9 provide support.
1-10 (b) It is the intent of the legislature in this Act that
1-11 spousal support should be terminated in the shortest reasonable
1-12 time, not to exceed three years, in which the former spouse is able
1-13 to be employed or to acquire the necessary skills to become
1-14 self-supporting. Only in circumstances in which the former spouse
1-15 cannot become self-supporting by reason of incapacitating physical
1-16 or mental disability or lack of other resources or income should
1-17 maintenance be extended beyond this period, not to exceed five
1-18 years.
1-19 SECTION 2. Chapter 3, Family Code, is amended by adding
1-20 Subchapter E to read as follows:
1-21 SUBCHAPTER E. MAINTENANCE
1-22 Sec. 3.80. 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. 3.81. ELIGIBILITY FOR MAINTENANCE. In a suit for
2-3 divorce, annulment, to declare a marriage void, or in a proceeding
2-4 for maintenance in a court with personal jurisdiction over both
2-5 former spouses following the dissolution of their marriage by a
2-6 court that lacked personal jurisdiction over an absent spouse, the
2-7 court may order maintenance for either spouse only if:
2-8 (1) the duration of the marriage was 10 years or
2-9 longer as of the date of the filing of the original petition;
2-10 (2) the spouse seeking maintenance lacks sufficient
2-11 property, including property or other resources or income
2-12 distributed to the spouse under this code, to provide for the
2-13 spouse's minimum reasonable needs, as limited by Section 3.84 of
2-14 this code; and
2-15 (3) the spouse needing maintenance:
2-16 (A) is unable to support himself or herself
2-17 through appropriate employment because of an incapacitating
2-18 physical or mental disability which first manifested itself during
2-19 the marriage or through other resources or income;
2-20 (B) is the custodian of a child who is a natural
2-21 or adopted child of the other spouse and who requires substantial
2-22 care and personal supervision because a physical or mental
2-23 disability makes it necessary, taking into consideration the needs
2-24 of the child, that the spouse seeking maintenance not be employed
2-25 outside the home; or
2-26 (C) clearly lacks earning ability in the labor
2-27 market or other resources or income adequate to provide support for
3-1 the spouse's minimum reasonable needs, as limited by Section 3.84
3-2 of this code.
3-3 Sec. 3.82. FACTORS TO DETERMINE MAINTENANCE. A court that
3-4 determines that a spouse is eligible to receive maintenance under
3-5 Section 3.81 of this code shall determine the nature, amount,
3-6 duration, and manner of periodic payments by considering all
3-7 relevant factors, including:
3-8 (1) the financial resources or other income or
3-9 property of the spouse seeking maintenance, including the community
3-10 and separate property and liabilities apportioned to that spouse in
3-11 the suit for divorce, annulment, or to declare a marriage void, and
3-12 that spouse's ability to meet his or her needs independently;
3-13 (2) the education and employment skills of the spouses
3-14 and the time necessary to acquire sufficient education or training
3-15 to enable the spouse needing maintenance to find appropriate
3-16 employment, the availability of that education or training, and the
3-17 feasibility of that education or training;
3-18 (3) the duration of the marriage;
3-19 (4) the age, employment history, earning ability, and
3-20 the physical and mental condition of the spouses;
3-21 (5) the ability of a spouse to meet that spouse's
3-22 personal needs and to provide periodic child support payments, if
3-23 applicable, while meeting the personal needs of the spouse seeking
3-24 maintenance;
3-25 (6) acts by either spouse resulting in excessive or
3-26 abnormal expenditures or destruction, concealment, or fraudulent
3-27 disposition of community property, joint tenancy, or other property
4-1 held in common;
4-2 (7) the comparative financial resources of the
4-3 spouses, including medical, retirement, insurance, or other
4-4 benefits, and the separate property of each spouse;
4-5 (8) the contribution by one spouse to the education,
4-6 training, or increased earning power of the other spouse during
4-7 marriage or to the accumulation of income, earnings, or property
4-8 during marriage;
4-9 (9) the property brought to the marriage by either
4-10 spouse; and
4-11 (10) the efforts of the spouse seeking maintenance to
4-12 pursue available employment counseling as provided by Chapter 159,
4-13 Acts of the 65th Legislature, Regular Session, 1977 (Article 5221g,
4-14 Vernon's Texas Civil Statutes).
4-15 Sec. 3.83. PRESUMPTION. (a) Except as provided by
4-16 Subsection (b) of this section, it is presumed that maintenance is
4-17 not warranted unless the spouse seeking maintenance rebuts the
4-18 presumption by proof that he or she has exercised diligence in:
4-19 (1) seeking suitable employment; or
4-20 (2) developing the necessary skills to become
4-21 self-supporting during any period of separation and during pendency
4-22 of the divorce suit.
4-23 (b) This section does not apply to a spouse who:
4-24 (1) is not able to rebut the presumption in Subsection
4-25 (a) of this section because of an incapacitating physical or mental
4-26 disability which first manifested itself during the marriage; or
4-27 (2) is the custodian of a child who requires
5-1 substantial care and personal supervision because a physical or
5-2 mental disability makes it necessary, taking into consideration the
5-3 needs of the child, that the spouse not be employed outside the
5-4 home.
5-5 Sec. 3.84. DURATION OF MAINTENANCE ORDER. (a) Except as
5-6 provided by Subsection (b) of this section, a court shall limit the
5-7 duration of a maintenance order to the shortest reasonable period
5-8 of time that allows the spouse seeking maintenance to meet the
5-9 spouse's minimum reasonable needs by obtaining appropriate
5-10 employment or developing an appropriate skill, not to exceed three
5-11 years from the rendition of the judgment, decree, or order.
5-12 (b) If a spouse seeking maintenance is unable to support his
5-13 or her minimum reasonable needs through appropriate employment
5-14 because of incapacitating physical or mental illness or through
5-15 other resources or income, the court may order maintenance for an
5-16 indefinite period for as long as the disability continues, not to
5-17 exceed five years from the rendition of the judgment, decree, or
5-18 order. The court may order periodic review of its order, on the
5-19 request of either party or on its own motion, to determine whether
5-20 the disability is continuing. The continuation of spousal
5-21 maintenance under these circumstances is subject to a motion to
5-22 modify as provided by Section 3.87 of this code.
5-23 Sec. 3.85. AMOUNT OF MAINTENANCE. (a) A court may not
5-24 enter a maintenance order that requires a spouse to pay more per
5-25 month than the lesser of:
5-26 (1) $1500; or
5-27 (2) 25 percent of the spouse's average monthly net
6-1 resources as that term is defined in Section 14.053(b) of this
6-2 code.
6-3 (b) A court may not enter an order that requires an obligor
6-4 to pay child support and maintenance the combined total amount of
6-5 which is more than 50 percent of that obligor's average monthly net
6-6 resources as that term is defined in Section 14.053(b) of this
6-7 code.
6-8 Sec. 3.86. TERMINATION. (a) The obligation to pay future
6-9 maintenance terminates on the death of either party or on the
6-10 remarriage of the party receiving maintenance.
6-11 (b) After a hearing the court shall terminate the
6-12 maintenance order if the party receiving maintenance cohabits with
6-13 another person in a permanent place of abode on a continuing,
6-14 conjugal basis.
6-15 Sec. 3.87. ESTABLISHMENT AND MODIFICATION OF MAINTENANCE
6-16 ORDER. (a) A court may only enter an order instituting spousal
6-17 maintenance in the original decree of divorce, of annulment, or to
6-18 declare a marriage void or in an order resulting from a proceeding
6-19 for maintenance in a court with personal jurisdiction over both
6-20 former spouses following the dissolution of their marriage by a
6-21 court that lacked personal jurisdiction over an absent spouse. The
6-22 original decree or order may only be modified to reduce or
6-23 terminate the amount or duration of the spousal maintenance. The
6-24 original decree or order may not be modified to institute or
6-25 increase the amount or duration of the spousal maintenance. A
6-26 party affected by the order or decree to be modified may file the
6-27 motion.
7-1 (b) Notice of a motion to modify maintenance and the
7-2 response, if any, are governed by the Texas Rules of Civil
7-3 Procedure applicable to the filing of an original lawsuit.
7-4 (c) After a hearing, the court may modify an original or
7-5 modified order or decree providing for maintenance on a proper
7-6 showing of a material and substantial change in circumstances of
7-7 either party since the rendition of the prior judgment, decree, or
7-8 order sought to be modified.
7-9 Sec. 3.88. ENFORCEMENT OF A MAINTENANCE ORDER. (a) The
7-10 court may enforce by contempt its maintenance order or an agreement
7-11 for the payment of maintenance voluntarily entered into between the
7-12 parties and approved by the court.
7-13 (b) On the motion of a party entitled to receive maintenance
7-14 payments, the court may render judgment against a defaulting party
7-15 for an amount unpaid and owing after notice by service of citation,
7-16 answer, if any, and a hearing finding that the defaulting party has
7-17 failed or refused to carry out the terms of the order. The
7-18 judgment may be enforced by any means available for the enforcement
7-19 of judgments for debts.
7-20 (c) It is an affirmative defense to an allegation of
7-21 contempt of court or of the violation of condition of probation
7-22 requiring payment of court-ordered maintenance that the obligor:
7-23 (1) lacked the ability to provide maintenance in the
7-24 amount ordered;
7-25 (2) lacked property that could be sold, mortgaged, or
7-26 otherwise pledged to raise the funds needed;
7-27 (3) attempted unsuccessfully to borrow the needed
8-1 funds; and
8-2 (4) did not know of a source from which the money
8-3 could have been borrowed or otherwise legally obtained.
8-4 (d) The issue of the existence of an affirmative defense
8-5 does not arise unless evidence is admitted supporting the defense.
8-6 If the issue of the existence of an affirmative defense arises, an
8-7 obligor must prove the affirmative defense by a preponderance of
8-8 the evidence.
8-9 Sec. 3.89. PUTATIVE SPOUSE. In a suit to declare a marriage
8-10 void, a putative spouse who did not have knowledge of an existing
8-11 impediment to a valid marriage may be awarded maintenance if
8-12 otherwise qualified to receive maintenance under this subchapter.
8-13 Sec. 3.891. UNMARRIED COHABITANTS. An order for maintenance
8-14 is not authorized between unmarried cohabitants under any
8-15 circumstances.
8-16 Sec. 3.892. FINDINGS IN MAINTENANCE ORDER. Without regard
8-17 to Rules 296 through 299, Texas Rules of Civil Procedure, in any
8-18 suit in which spousal maintenance is contested and the amount of
8-19 maintenance is set by the court, on written request made or filed
8-20 with the court not later than 10 days after the date of the hearing
8-21 or on oral request made in open court during the hearing, the court
8-22 shall state the following in the maintenance order:
8-23 (1) the duration of the marriage as of the date of the
8-24 filing of the original petition;
8-25 (2) the facts and specific reasons supporting a
8-26 finding, if such finding is made, that the obligee:
8-27 (A) lacks sufficient property or other resources
9-1 or income to provide for the obligee's minimum reasonable needs;
9-2 (B) is unable to support himself or herself
9-3 through appropriate employment because of an incapacitating
9-4 physical or mental disability which first manifested itself during
9-5 the marriage or through other resources or income;
9-6 (C) is the custodian of a child who requires
9-7 substantial care and personal supervision because a physical or
9-8 mental disability makes it necessary, taking into consideration the
9-9 needs of the child, that the spouse not be employed outside the
9-10 home; or
9-11 (D) clearly lacks earning ability in the labor
9-12 market or other resources or income adequate to provide support for
9-13 the obligee's reasonable needs;
9-14 (3) the relevant factors considered and used to
9-15 determine the nature, amount, duration, and manner of payments and
9-16 the facts and specific reasons supporting each factor;
9-17 (4) the amount of maintenance payments per month; and
9-18 (5) the amount of net resources available to the
9-19 obligor and available to the obligee as the term "net resources" is
9-20 defined in Section 14.053(b) of this code.
9-21 SECTION 3. (a) Except as provided by Subsection (b) of this
9-22 section, this Act takes effect September 1, 1993, and applies only
9-23 to an action filed on or after that date.
9-24 (b) This Act does not apply to an action filed on or before
9-25 January 1, 1995, if a prior suit for dissolution of a marriage
9-26 between the parties was nonsuited by the spouse seeking maintenance
9-27 on or after January 1, 1993, and on or before August 31, 1993.
10-1 (c) An action to which this Act does not apply according to
10-2 Subsection (b) of this section is governed by the law in effect at
10-3 the time the action was filed, and that law is continued in effect
10-4 only for this purpose.
10-5 SECTION 4. The importance of this legislation and the
10-6 crowded condition of the calendars in both houses create an
10-7 emergency and an imperative public necessity that the
10-8 constitutional rule requiring bills to be read on three several
10-9 days in each house be suspended, and this rule is hereby suspended.