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 -------------------------------------------------------------------