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
5-11 -------------------------------------------------------------------
5-12 Name: Suzanne Stovall x
5-13 Representing: Self
5-14 City: Conroe
5-15 -------------------------------------------------------------------
5-16 Name: Sheila Enid Cheaney x
5-17 Representing: Women And The Law Section
5-18 City: Austin
5-19 -------------------------------------------------------------------