By Harris of Tarrant, et al. S.B. No. 424
Substitute the following for S.B. No. 424:
By Thompson of Harris C.S.S.B. No. 424
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 and whose capital assets are insufficient to 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 should maintenance be extended beyond this
1-17 period.
1-18 SECTION 2. Chapter 3, Family Code, is amended by adding
1-19 Subchapter E to read as follows:
1-20 SUBCHAPTER E. MAINTENANCE
1-21 Sec. 3.80. Definition. In this subchapter, "maintenance"
1-22 means an award in a divorce, annulment, or suit to declare a
1-23 marriage void of periodic payments from the future income of one
1-24 spouse for the support of the other spouse.
2-1 Sec. 3.81. Eligibility for Maintenance. In a suit for
2-2 divorce, annulment, to declare a marriage void, or in a proceeding
2-3 for maintenance in a court with personal jurisdiction over both
2-4 former spouses following the dissolution of their marriage by a
2-5 court that lacked personal jurisdiction over an absent spouse, the
2-6 court may order maintenance for either spouse only if:
2-7 (1) the duration of the marriage was 10 years or
2-8 longer;
2-9 (2) the spouse seeking maintenance lacks sufficient
2-10 property, including property distributed to the spouse under this
2-11 code, to provide for the spouse's minimum reasonable needs, as
2-12 limited by Section 3.84 of this code; and
2-13 (3) the spouse seeking maintenance:
2-14 (A) is unable to support himself or herself
2-15 through appropriate employment because of an incapacitating
2-16 physical or mental disability;
2-17 (B) is the custodian of a child who requires
2-18 substantial care and personal supervision because a physical or
2-19 mental disability makes it necessary, taking into consideration the
2-20 needs of the child, that the spouse not be employed outside the
2-21 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 3.84 of this code.
2-25 Sec. 3.82. Factors to Determine Maintenance. A court that
2-26 determines that a spouse is eligible to receive maintenance under
2-27 Section 3.81 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 suit for divorce,
3-6 annulment, or to declare a marriage void, and that spouse's ability
3-7 to meet his or her needs 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 mental 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. 3.83. 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 a child who requires
4-25 substantial care and personal supervision because a physical or
4-26 mental disability makes it necessary, taking into consideration the
4-27 needs of the child, that the spouse not be employed outside the
5-1 home.
5-2 Sec. 3.84. DURATION OF MAINTENANCE ORDER. (a) Except as
5-3 provided by Subsection (b) of this section, a court shall limit the
5-4 duration of a maintenance order to the shortest reasonable period
5-5 of time that allows the spouse seeking maintenance to meet the
5-6 spouse's minimum reasonable needs by obtaining appropriate
5-7 employment or developing an appropriate skill, not to exceed three
5-8 years.
5-9 (b) If a spouse seeking maintenance is unable to support his
5-10 or her minimum reasonable needs through appropriate employment
5-11 because of incapacitating physical or mental illness, the court may
5-12 order maintenance for an indefinite period for as long as the
5-13 disability continues. The court may order periodic review of its
5-14 order, on the request of either party or on its own motion, to
5-15 determine whether the disability is continuing. The continuation
5-16 of spousal maintenance under these circumstances is subject to a
5-17 motion to modify as provided by Section 3.87 of this code.
5-18 Sec. 3.85. AMOUNT OF MAINTENANCE. (a) A court may not
5-19 enter a maintenance order that requires a spouse to pay more than
5-20 the lesser of:
5-21 (1) $1,500; or
5-22 (2) 20 percent of the spouse's average monthly gross
5-23 income.
5-24 (b) The court shall set the amount that a spouse is required
5-25 to pay in a maintenance order to provide for the minimum reasonable
5-26 needs of the spouse receiving the maintenance under the order,
5-27 considering any employment or property received in the divorce or
6-1 annulment or otherwise owned by the spouse receiving the
6-2 maintenance that contributes to the minimum reasonable needs of
6-3 that spouse.
6-4 Sec. 3.86. TERMINATION. (a) The obligation to pay future
6-5 maintenance terminates on the death of either party or on the
6-6 remarriage of the party receiving maintenance.
6-7 (b) After a hearing, the court shall terminate the
6-8 maintenance order if the party receiving maintenance cohabits with
6-9 another person in a permanent place of abode on a continuing,
6-10 conjugal basis.
6-11 Sec. 3.87. Modification of Maintenance Order. (a) The
6-12 amount of maintenance specified in a court order or decree may be
6-13 reduced by the filing of a motion in the court that originally
6-14 entered the order. A party affected by the order or decree to be
6-15 modified may file the motion.
6-16 (b) Notice of a motion to modify maintenance and the
6-17 response, if any, are governed by the Texas Rules of Civil
6-18 Procedure applicable to the filing of an original lawsuit.
6-19 (c) After a hearing, the court may modify an original or
6-20 modified order or decree providing for maintenance on a proper
6-21 showing of a material and substantial change in circumstances of
6-22 either party. The court shall apply the modification only to
6-23 payments accruing after the filing of the motion to modify.
6-24 (d) A loss of employment or circumstances that render a
6-25 former spouse unable to support himself or herself through
6-26 appropriate employment by reason of incapacitating physical or
6-27 mental disability that occurs after the divorce or annulment are
7-1 not grounds for the institution of spousal maintenance for the
7-2 benefit of the former spouse.
7-3 Sec. 3.88. Enforcement of Maintenance Order. (a) The court
7-4 may enforce by contempt its maintenance order or an agreement for
7-5 the payment of maintenance voluntarily entered into between the
7-6 parties and approved by the court.
7-7 (b) On the motion of a party entitled to receive maintenance
7-8 payments, the court may render judgment against a defaulting party
7-9 for an amount unpaid and owing after notice by service of citation,
7-10 answer, if any, and a hearing finding that the defaulting party has
7-11 failed or refused to carry out the terms of the order. The
7-12 judgment may be enforced by any means available for the enforcement
7-13 of judgments for debts.
7-14 (c) It is an affirmative defense to an allegation of
7-15 contempt of court or of the violation of a condition of probation
7-16 requiring payment of court-ordered maintenance that the obligor:
7-17 (1) lacked the ability to provide maintenance in the
7-18 amount ordered;
7-19 (2) lacked property that could be sold, mortgaged, or
7-20 otherwise pledged to raise the funds needed;
7-21 (3) attempted unsuccessfully to borrow the needed
7-22 funds; and
7-23 (4) did not know of a source from which the money
7-24 could have been borrowed or otherwise legally obtained.
7-25 (d) The issue of the existence of an affirmative defense
7-26 does not arise unless evidence is admitted supporting the defense.
7-27 If the issue of the existence of an affirmative defense arises, an
8-1 obligor must prove the affirmative defense by a preponderance of
8-2 the evidence.
8-3 Sec. 3.89. Putative Spouse. In a suit to declare a marriage
8-4 void, a putative spouse who did not have knowledge of an existing
8-5 impediment to a valid marriage may be awarded maintenance if
8-6 otherwise qualified to receive maintenance under this subchapter.
8-7 Sec. 3.891. Unmarried Cohabitants. An order for maintenance
8-8 is not authorized between unmarried cohabitants under any
8-9 circumstances.
8-10 SECTION 3. (a) Except as provided by Subsection (b) of this
8-11 section, this Act takes effect September 1, 1993, and applies only
8-12 to an action filed on or after that date.
8-13 (b) This Act does not apply to an action filed on or before
8-14 January 1, 1995, if a prior suit for dissolution of a marriage
8-15 between the parties was nonsuited by the spouse seeking maintenance
8-16 on or after January 1, 1993, and on or before August 31, 1993.
8-17 (c) An action to which this Act does not apply is governed
8-18 by the law in effect at the time the action was filed, and that law
8-19 is continued in effect only for this purpose.
8-20 SECTION 4. The importance of this legislation and the
8-21 crowded condition of the calendars in both houses create an
8-22 emergency and an imperative public necessity that the
8-23 constitutional rule requiring bills to be read on three several
8-24 days in each house be suspended, and this rule is hereby suspended.