By: Wentworth S.B. No. 951 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 primarily as a temporary 1-6 rehabilitative measure for a divorced spouse whose ability for 1-7 self-support is lacking or has deteriorated through the passage of 1-8 time and whose capital assets are insufficient to provide support. 1-9 (b) It is the intent of the legislature in this Act that 1-10 spousal support should be terminated in the shortest reasonable 1-11 time, not to exceed three years, in which the former spouse is able 1-12 to be employed or to acquire the necessary skills to become 1-13 self-supporting. Only in circumstances in which the former spouse 1-14 cannot become self-supporting by reason of incapacitating physical 1-15 or mental disability should maintenance be extended beyond this 1-16 period. 1-17 SECTION 2. Chapter 3, Family Code, is amended by adding 1-18 Subchapter E to read as follows: 1-19 SUBCHAPTER E. MAINTENANCE 1-20 Sec. 3.80. Definition. In this subchapter, "maintenance" 1-21 means an award in a divorce, annulment, or suit to declare a 1-22 marriage void of periodic payments from the future income of one 1-23 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 3-1 determines that a spouse is eligible to receive maintenance under 3-2 Section 3.81 of this code shall determine the nature, amount, 3-3 duration, and manner of periodic payments by considering all 3-4 relevant factors, including: 3-5 (1) the financial resources of the spouse seeking 3-6 maintenance, including the community and separate property and 3-7 liabilities apportioned to that spouse in the suit for divorce, 3-8 annulment, or to declare a marriage void, and that spouse's ability 3-9 to meet his or her needs independently; 3-10 (2) the education and employment skills of the spouses 3-11 and the time necessary to acquire sufficient education or training 3-12 to enable the spouse seeking maintenance to find appropriate 3-13 employment, the availability of that education or training, and the 3-14 feasibility of that education or training; 3-15 (3) the duration of the marriage; 3-16 (4) the age, employment history, earning ability, and 3-17 the physical and mental condition of the spouse seeking 3-18 maintenance; 3-19 (5) the ability of the spouse from whom maintenance is 3-20 sought to meet that spouse's personal needs and to provide periodic 3-21 child support payments, if applicable, while meeting the personal 3-22 needs of the spouse seeking maintenance; 3-23 (6) acts by either spouse resulting in excessive or 3-24 abnormal expenditures or destruction, concealment, or fraudulent 3-25 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; 4-7 (9) the property brought to the marriage by either 4-8 spouse; 4-9 (10) the contribution of a spouse as homemaker; 4-10 (11) any marital misconduct of the spouse seeking 4-11 maintenance; and 4-12 (12) the efforts of the spouse seeking maintenance to 4-13 pursue available employment counseling as provided by Chapter 159, 4-14 Acts of the 65th Legislature, Regular Session, 1977 (Article 5221g, 4-15 Vernon's Texas Civil Statutes). 4-16 Sec. 3.83. PRESUMPTION. (a) Except as provided by 4-17 Subsection (b) of this section, it is presumed that maintenance is 4-18 not warranted unless the spouse seeking maintenance has exercised 4-19 diligence in: 4-20 (1) seeking suitable employment; or 4-21 (2) developing the necessary skills to become 4-22 self-supporting during any period of separation and during the 4-23 pendency of the divorce suit. 4-24 (b) This section does not apply to a spouse who: 4-25 (1) is not able to satisfy the presumption in 5-1 Subsection (a) of this section because of an incapacitating 5-2 physical or mental disability; or 5-3 (2) is the custodian of a child who requires 5-4 substantial care and personal supervision because a physical or 5-5 mental disability makes it necessary, taking into consideration the 5-6 needs of the child, that the spouse not be employed outside the 5-7 home. 5-8 Sec. 3.84. DURATION OF MAINTENANCE ORDER. (a) Except as 5-9 provided by Subsection (b) of this section, a court shall limit the 5-10 duration of a maintenance order to the shortest reasonable period 5-11 of time that allows the spouse seeking maintenance to meet the 5-12 spouse's minimum reasonable needs by obtaining appropriate 5-13 employment or developing an appropriate skill, not to exceed three 5-14 years. 5-15 (b) If a spouse seeking maintenance is unable to support his 5-16 or her minimum reasonable needs through appropriate employment 5-17 because of incapacitating physical or mental illness, the court may 5-18 order maintenance for an indefinite period for as long as the 5-19 disability continues. The court may order periodic review of its 5-20 order, on the request of either party or on its own motion, to 5-21 determine whether the disability is continuing. The continuation 5-22 of spousal maintenance under these circumstances is subject to a 5-23 motion to modify as provided by Section 3.87 of this code. 5-24 Sec. 3.85. AMOUNT OF MAINTENANCE. (a) A court may not 5-25 enter a maintenance order that requires a spouse to pay more than 6-1 the lesser of: 6-2 (1) $1,500; or 6-3 (2) 20 percent of the spouse's average monthly gross 6-4 income. 6-5 (b) The court shall set the amount that a spouse is required 6-6 to pay in a maintenance order to provide for the minimum reasonable 6-7 needs of the spouse receiving the maintenance under the order, 6-8 considering any employment or property received in the divorce or 6-9 annulment or otherwise owned by the spouse receiving the 6-10 maintenance that contributes to the minimum reasonable needs of 6-11 that spouse. 6-12 Sec. 3.86. TERMINATION. (a) The obligation to pay future 6-13 maintenance terminates on the death of either party or on the 6-14 remarriage of the party receiving maintenance. 6-15 (b) After a hearing, the court shall terminate the 6-16 maintenance order if the party receiving maintenance cohabits with 6-17 another person in a permanent place of abode on a continuing, 6-18 conjugal basis. 6-19 Sec. 3.87. Modification of Maintenance Order. (a) The 6-20 amount of maintenance specified in a court order or decree may be 6-21 reduced by the filing of a motion in the court that originally 6-22 entered the order. A party affected by the order or decree to be 6-23 modified may file the motion. 6-24 (b) Notice of a motion to modify maintenance and the 6-25 response, if any, are governed by the Texas Rules of Civil 7-1 Procedure applicable to the filing of an original lawsuit. 7-2 (c) After a hearing, the court may modify an original or 7-3 modified order or decree providing for maintenance on a proper 7-4 showing of a material and substantial change in circumstances of 7-5 either party. The court shall apply the modification only to 7-6 payments accruing after the filing of the motion to modify. 7-7 (d) A loss of employment or circumstances that render a 7-8 former spouse unable to support himself or herself through 7-9 appropriate employment by reason of incapacitating physical or 7-10 mental disability that occurs after the divorce or annulment are 7-11 not grounds for the institution of spousal maintenance for the 7-12 benefit of the former spouse. 7-13 Sec. 3.88. Enforcement of Maintenance Order. (a) The court 7-14 may enforce by contempt its maintenance order or an agreement for 7-15 the payment of maintenance voluntarily entered into between the 7-16 parties and approved by the court. 7-17 (b) On the motion of a party entitled to receive maintenance 7-18 payments, the court may render judgment against a defaulting party 7-19 for an amount unpaid and owing after notice by service of citation, 7-20 answer, if any, and a hearing finding that the defaulting party has 7-21 failed or refused to carry out the terms of the order. The 7-22 judgment may be enforced by any means available for the enforcement 7-23 of judgments for debts. 7-24 (c) It is an affirmative defense to an allegation of 7-25 contempt of court or of the violation of a condition of probation 8-1 requiring payment of court-ordered maintenance that the obligor: 8-2 (1) lacked the ability to provide maintenance in the 8-3 amount ordered; 8-4 (2) lacked property that could be sold, mortgaged, or 8-5 otherwise pledged to raise the funds needed; 8-6 (3) attempted unsuccessfully to borrow the needed 8-7 funds; and 8-8 (4) did not know of a source from which the money 8-9 could have been borrowed or otherwise legally obtained. 8-10 (d) The issue of the existence of an affirmative defense 8-11 does not arise unless evidence is admitted supporting the defense. 8-12 If the issue of the existence of an affirmative defense arises, an 8-13 obligor must prove the affirmative defense by a preponderance of 8-14 the evidence. 8-15 Sec. 3.89. Putative Spouse. In a suit to declare a marriage 8-16 void, a putative spouse who did not have knowledge of an existing 8-17 impediment to a valid marriage may be awarded maintenance if 8-18 otherwise qualified to receive maintenance under this subchapter. 8-19 Sec. 3.891. Unmarried Cohabitants. An order for maintenance 8-20 is not authorized between unmarried cohabitants under any 8-21 circumstances. 8-22 SECTION 3. (a) Except as provided by Subsection (b) of this 8-23 section, this Act takes effect September 1, 1993, and applies only 8-24 to an action filed on or after that date. 8-25 (b) This Act does not apply to an action filed on or before 9-1 January 1, 1995, if a prior suit for dissolution of a marriage 9-2 between the parties was nonsuited by the spouse seeking maintenance 9-3 on or after January 1, 1993, and on or before August 31, 1993. 9-4 (c) An action to which this Act does not apply is governed 9-5 by the law in effect at the time the action was filed, and that law 9-6 is continued in effect only for this purpose. 9-7 SECTION 4. The importance of this legislation and the 9-8 crowded condition of the calendars in both houses create an 9-9 emergency and an imperative public necessity that the 9-10 constitutional rule requiring bills to be read on three several 9-11 days in each house be suspended, and this rule is hereby suspended.