1-1  By:  Harris of Tarrant                                 S.B. No. 424
    1-2        (In the Senate - Filed February 22, 1993; February 22, 1993,
    1-3  read first time and referred to Committee on Jurisprudence;
    1-4  March 16, 1993, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 7, Nays 0; March 16, 1993,
    1-6  sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Henderson          x                               
   1-10        Harris of Tarrant  x                               
   1-11        Brown              x                               
   1-12        Harris of Dallas   x                               
   1-13        Luna               x                               
   1-14        Parker             x                               
   1-15        West               x                               
   1-16  COMMITTEE SUBSTITUTE FOR S.B. No. 424        By:  Harris of Tarrant
   1-17                         A BILL TO BE ENTITLED
   1-18                                AN ACT
   1-19  relating to spousal maintenance after the dissolution of certain
   1-20  marriages or putative marriages.
   1-21        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-22        SECTION 1.  (a)  It is the intent of the legislature in this
   1-23  Act to provide spousal maintenance as a temporary rehabilitative
   1-24  measure for a divorced spouse whose ability for self-support is
   1-25  lacking or has deteriorated through the passage of time and whose
   1-26  capital assets or other resources or income are insufficient to
   1-27  provide support.
   1-28        (b)  It is the intent of the legislature in this Act that
   1-29  spousal support should be terminated in the shortest reasonable
   1-30  time, not to exceed three years, in which the former spouse is able
   1-31  to be employed or to acquire the necessary skills to become
   1-32  self-supporting.  Only in circumstances in which the former spouse
   1-33  cannot become self-supporting by reason of incapacitating physical
   1-34  or mental disability or lack of other resources or income should
   1-35  maintenance be extended beyond this period, not to exceed five
   1-36  years.
   1-37        SECTION 2.  Chapter 3, Family Code, is amended by adding
   1-38  Subchapter E to read as follows:
   1-39                      SUBCHAPTER E.  MAINTENANCE
   1-40        Sec. 3.80.  DEFINITION.  In this Subchapter, "maintenance"
   1-41  means an award, in a divorce, annulment, or suit to declare a
   1-42  marriage void, of periodic payments from the future income of one
   1-43  spouse for the support of the other spouse.
   1-44        Sec. 3.81.  ELIGIBILITY FOR MAINTENANCE.  In a suit for
   1-45  divorce, annulment, to declare a marriage void, or in a proceeding
   1-46  for maintenance in a court with personal jurisdiction over both
   1-47  former spouses following the dissolution of their marriage by a
   1-48  court that lacked personal jurisdiction over an absent spouse, the
   1-49  court may order maintenance for either spouse only if:
   1-50              (1)  the duration of the marriage was 10 years or
   1-51  longer as of the date of the filing of the original petition;
   1-52              (2)  the spouse seeking maintenance lacks sufficient
   1-53  property, including property or other resources or income
   1-54  distributed to the spouse under this code, to provide for the
   1-55  spouse's minimum reasonable needs, as limited by Section 3.84 of
   1-56  this code; and
   1-57              (3)  the spouse needing maintenance:
   1-58                    (A)  is unable to support himself or herself
   1-59  through appropriate employment because of an incapacitating
   1-60  physical or mental disability which first manifested itself during
   1-61  the marriage or through other resources or income;
   1-62                    (B)  is the custodian of a child who is a natural
   1-63  or adopted child of the other spouse and who requires substantial
   1-64  care and personal supervision because a physical or mental
   1-65  disability makes it necessary, taking into consideration the needs
   1-66  of the child, that the spouse seeking maintenance not be employed
   1-67  outside the home; or
   1-68                    (C)  clearly lacks earning ability in the labor
    2-1  market or other resources or income adequate to provide support for
    2-2  the spouse's minimum reasonable needs, as limited by Section 3.84
    2-3  of this code.
    2-4        Sec. 3.82.  FACTORS TO DETERMINE MAINTENANCE.  A court that
    2-5  determines that a spouse is eligible to receive maintenance under
    2-6  Section 3.81 of this code shall determine the nature, amount,
    2-7  duration, and manner of periodic payments by considering all
    2-8  relevant factors, including:
    2-9              (1)  the financial resources or other income or
   2-10  property of the spouse seeking maintenance, including the community
   2-11  and separate property and liabilities apportioned to that spouse in
   2-12  the suit for divorce, annulment, or to declare a marriage void, and
   2-13  that spouse's ability to meet his or her needs independently;
   2-14              (2)  the education and employment skills of the spouses
   2-15  and the time necessary to acquire sufficient education or training
   2-16  to enable the spouse needing maintenance to find appropriate
   2-17  employment, the availability of that education or training, and the
   2-18  feasibility of that education or training;
   2-19              (3)  the duration of the marriage;
   2-20              (4)  the age, employment history, earning ability, and
   2-21  the physical and mental condition of the spouses;
   2-22              (5)  the ability of a spouse to meet that spouse's
   2-23  personal needs and to provide periodic child support payments, if
   2-24  applicable, while meeting the personal needs of the spouse seeking
   2-25  maintenance;
   2-26              (6)  acts by either spouse resulting in excessive or
   2-27  abnormal expenditures or destruction, concealment, or fraudulent
   2-28  disposition of community property, joint tenancy, or other property
   2-29  held in common;
   2-30              (7)  the comparative financial resources of the
   2-31  spouses, including medical, retirement, insurance, or other
   2-32  benefits, and the separate property of each spouse;
   2-33              (8)  the contribution by one spouse to the education,
   2-34  training, or increased earning power of the other spouse during
   2-35  marriage or to the accumulation of income, earnings, or property
   2-36  during marriage;
   2-37              (9)  the property brought to the marriage by either
   2-38  spouse; and
   2-39              (10)  the efforts of the spouse seeking maintenance to
   2-40  pursue available employment counseling as provided by Chapter 159,
   2-41  Acts of the 65th Legislature, Regular Session, 1977 (Article 5221g,
   2-42  Vernon's Texas Civil Statutes).
   2-43        Sec. 3.83.  PRESUMPTION.  (a)  Except as provided by
   2-44  Subsection (b) of this section, it is presumed that maintenance is
   2-45  not warranted unless the spouse seeking maintenance rebuts the
   2-46  presumption by proof that he or she has exercised diligence in:
   2-47              (1)  seeking suitable employment; or
   2-48              (2)  developing the necessary skills to become
   2-49  self-supporting during any period of separation and during pendency
   2-50  of the divorce suit.
   2-51        (b)  This section does not apply to a spouse who:
   2-52              (1)  is not able to rebut the presumption in Subsection
   2-53  (a) of this section because of an incapacitating physical or mental
   2-54  disability which first manifested itself during the marriage; or
   2-55              (2)  is the custodian of a child who requires
   2-56  substantial care and personal supervision because a physical or
   2-57  mental disability makes it necessary, taking into consideration the
   2-58  needs of the child, that the spouse not be employed outside the
   2-59  home.
   2-60        Sec. 3.84.  DURATION OF MAINTENANCE ORDER.  (a)  Except as
   2-61  provided by Subsection (b) of this section, a court shall limit the
   2-62  duration of a maintenance order to the shortest reasonable period
   2-63  of time that allows the spouse seeking maintenance to meet the
   2-64  spouse's minimum reasonable needs by obtaining appropriate
   2-65  employment or developing an appropriate skill, not to exceed three
   2-66  years from the rendition of the judgment, decree, or order.
   2-67        (b)  If a spouse seeking maintenance is unable to support his
   2-68  or her minimum reasonable needs through appropriate employment
   2-69  because of incapacitating physical or mental illness or through
   2-70  other resources or income, the court may order maintenance for an
    3-1  indefinite period for as long as the disability continues, not to
    3-2  exceed five years from the rendition of the judgment, decree, or
    3-3  order.  The court may order periodic review of its order, on the
    3-4  request of either party or on its own motion, to determine whether
    3-5  the disability is continuing.  The continuation of spousal
    3-6  maintenance under these circumstances is subject to a motion to
    3-7  modify as provided by Section 3.87 of this code.
    3-8        Sec. 3.85.  AMOUNT OF MAINTENANCE.  (a)  A court may not
    3-9  enter a maintenance order that requires a spouse to pay more per
   3-10  month than the lesser of:
   3-11              (1)  $1500; or
   3-12              (2)  25 percent of the spouse's average monthly net
   3-13  resources as that term is defined in Section 14.053(b) of this
   3-14  code.
   3-15        (b)  A court may not enter an order that requires an obligor
   3-16  to pay child support and maintenance the combined total amount of
   3-17  which is more than 50 percent of that obligor's average monthly net
   3-18  resources as that term is defined in Section 14.053(b) of this
   3-19  code.
   3-20        Sec. 3.86.  TERMINATION.  (a)  The obligation to pay future
   3-21  maintenance terminates on the death of either party or on the
   3-22  remarriage of the party receiving maintenance.
   3-23        (b)  After a hearing the court shall terminate the
   3-24  maintenance order if the party receiving maintenance cohabits with
   3-25  another person in a permanent place of abode on a continuing,
   3-26  conjugal basis.
   3-27        Sec. 3.87.  ESTABLISHMENT AND MODIFICATION OF MAINTENANCE
   3-28  ORDER.  (a)  A court may only enter an order instituting spousal
   3-29  maintenance in the original decree of divorce, of annulment, or to
   3-30  declare a marriage void or in an order resulting from a proceeding
   3-31  for maintenance in a court with personal jurisdiction over both
   3-32  former spouses following the dissolution of their marriage by a
   3-33  court that lacked personal jurisdiction over an absent spouse.  The
   3-34  original decree or order may only be modified to reduce or
   3-35  terminate the amount or duration of the spousal maintenance.  The
   3-36  original decree or order may not be modified to institute or
   3-37  increase the amount or duration of the spousal maintenance.  A
   3-38  party affected by the order or decree to be modified may file the
   3-39  motion.
   3-40        (b)  Notice of a motion to modify maintenance and the
   3-41  response, if any, are governed by the Texas Rules of Civil
   3-42  Procedure applicable to the filing of an original lawsuit.
   3-43        (c)  After a hearing, the court may modify an original or
   3-44  modified order or decree providing for maintenance on a proper
   3-45  showing of a material and substantial change in circumstances of
   3-46  either party since the rendition of the prior judgment, decree, or
   3-47  order sought to be modified.
   3-48        Sec. 3.88.  ENFORCEMENT OF A MAINTENANCE ORDER.  (a)  The
   3-49  court may enforce by contempt its maintenance order or an agreement
   3-50  for the payment of maintenance voluntarily entered into between the
   3-51  parties and approved by the court.
   3-52        (b)  On the motion of a party entitled to receive maintenance
   3-53  payments, the court may render judgment against a defaulting party
   3-54  for an amount unpaid and owing after notice by service of citation,
   3-55  answer, if any, and a hearing finding that the defaulting party has
   3-56  failed or refused to carry out the terms of the order.  The
   3-57  judgment may be enforced by any means available for the enforcement
   3-58  of judgments for debts.
   3-59        (c)  It is an affirmative defense to an allegation of
   3-60  contempt of court or of the violation of condition of probation
   3-61  requiring payment of court-ordered maintenance that the obligor:
   3-62              (1)  lacked the ability to provide maintenance in the
   3-63  amount ordered;
   3-64              (2)  lacked property that could be sold, mortgaged, or
   3-65  otherwise pledged to raise the funds needed;
   3-66              (3)  attempted unsuccessfully to borrow the needed
   3-67  funds; and
   3-68              (4)  did not know of a source from which the money
   3-69  could have been borrowed or otherwise legally obtained.
   3-70        (d)  The issue of the existence of an affirmative defense
    4-1  does not arise unless evidence is admitted supporting the defense.
    4-2  If the issue of the existence of an affirmative defense arises, an
    4-3  obligor must prove the affirmative defense by a preponderance of
    4-4  the evidence.
    4-5        Sec. 3.89.  PUTATIVE SPOUSE.  In a suit to declare a marriage
    4-6  void, a putative spouse who did not have knowledge of an existing
    4-7  impediment to a valid marriage may be awarded maintenance if
    4-8  otherwise qualified to receive maintenance under this subchapter.
    4-9        Sec. 3.891.  UNMARRIED COHABITANTS.  An order for maintenance
   4-10  is not authorized between unmarried cohabitants under any
   4-11  circumstances.
   4-12        Sec. 3.892.  FINDINGS IN MAINTENANCE ORDER.  Without regard
   4-13  to Rules 296 through 299, Texas Rules of Civil Procedure, in any
   4-14  suit in which spousal maintenance is contested and the amount of
   4-15  maintenance is set by the court, on written request made or filed
   4-16  with the court not later than 10 days after the date of the hearing
   4-17  or on oral request made in open court during the hearing, the court
   4-18  shall state the following in the maintenance order:
   4-19              (1)  the duration of the marriage as of the date of the
   4-20  filing of the original petition;
   4-21              (2)  the facts and specific reasons supporting a
   4-22  finding, if such finding is made, that the obligee:
   4-23                    (A)  lacks sufficient property or other resources
   4-24  or income to provide for the obligee's minimum reasonable needs;
   4-25                    (B)  is unable to support himself or herself
   4-26  through appropriate employment because of an incapacitating
   4-27  physical or mental disability which first manifested itself during
   4-28  the marriage or through other resources or income;
   4-29                    (C)  is the custodian of a child who requires
   4-30  substantial care and personal supervision because a physical or
   4-31  mental disability makes it necessary, taking into consideration the
   4-32  needs of the child, that the spouse not be employed outside the
   4-33  home; or
   4-34                    (D)  clearly lacks earning ability in the labor
   4-35  market or other resources or income adequate to provide support for
   4-36  the obligee's reasonable needs;
   4-37              (3)  the relevant factors considered and used to
   4-38  determine the nature, amount, duration, and manner of payments and
   4-39  the facts and specific reasons supporting each factor;
   4-40              (4)  the amount of maintenance payments per month; and
   4-41              (5)  the amount of net resources available to the
   4-42  obligor and available to the obligee as the term "net resources" is
   4-43  defined in Section 14.053(b) of this code.
   4-44        SECTION 3.  (a)  Except as provided by Subsection (b) of this
   4-45  section, this Act takes effect September 1, 1993, and applies only
   4-46  to an action filed on or after that date.
   4-47        (b)  This Act does not apply to an action filed on or before
   4-48  January 1, 1995, if a prior suit for dissolution of a marriage
   4-49  between the parties was nonsuited by the spouse seeking maintenance
   4-50  on or after January 1, 1993, and on or before August 31, 1993.
   4-51        (c)  An action to which this Act does not apply according to
   4-52  Subsection (b) of this section is governed by the law in effect at
   4-53  the time the action was filed, and that law is continued in effect
   4-54  only for this purpose.
   4-55        SECTION 4.  The importance of this legislation and the
   4-56  crowded condition of the calendars in both houses create an
   4-57  emergency and an imperative public necessity that the
   4-58  constitutional rule requiring bills to be read on three several
   4-59  days in each house be suspended, and this rule is hereby suspended.
   4-60                               * * * * *
   4-61                                                         Austin,
   4-62  Texas
   4-63                                                         March 16, 1993
   4-64  Hon. Bob Bullock
   4-65  President of the Senate
   4-66  Sir:
   4-67  We, your Committee on Jurisprudence to which was referred S.B. No.
   4-68  424, have had the same under consideration, and I am instructed to
   4-69  report it back to the Senate with the recommendation that it do not
   4-70  pass, but that the Committee Substitute adopted in lieu thereof do
    5-1  pass and be printed.
    5-2                                                         Henderson,
    5-3  Chairman
    5-4                               * * * * *
    5-5                               WITNESSES
    5-6                                                  FOR   AGAINST  ON
    5-7  ___________________________________________________________________
    5-8  Name:  John J. Sampson                           x
    5-9  Representing:  Self
   5-10  City:  Austin
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   5-12  Name:  Suzanne Stovall                           x
   5-13  Representing:  Self
   5-14  City:  Conroe
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   5-16  Name:  Sheila Enid Cheaney                       x
   5-17  Representing:  Women And The Law Section
   5-18  City:  Austin
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