By Thompson H.B. No. 1042
74R2649 MJW-F
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 G to read as follows:
1-20 SUBCHAPTER G. MAINTENANCE
1-21 Sec. 3.9601. 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. 3.9602. 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) not earlier than one year before the date on which
2-8 a suit for dissolution of the marriage was filed, the spouse from
2-9 whom maintenance is sought was convicted of, or received deferred
2-10 adjudication for, a criminal offense that also constitutes an act
2-11 of family violence under Section 71.01, Family Code, and that
2-12 spouse was placed under community supervision; or
2-13 (2) the duration of the marriage was 10 years or
2-14 longer, the spouse seeking maintenance lacks sufficient property,
2-15 including property distributed to the spouse under this code, to
2-16 provide for the spouse's minimum reasonable needs, as limited by
2-17 Section 3.9605, and the spouse seeking maintenance:
2-18 (A) is unable to support himself or herself
2-19 through appropriate employment because of an incapacitating
2-20 physical or mental disability;
2-21 (B) is the custodian of a child who requires
2-22 substantial care and personal supervision because a physical or
2-23 mental disability makes it necessary, taking into consideration the
2-24 needs of the child, that the spouse not be employed outside the
2-25 home; or
2-26 (C) clearly lacks earning ability in the labor
2-27 market adequate to provide support for the spouse's minimum
3-1 reasonable needs, as limited by Section 3.9605.
3-2 Sec. 3.9603. Factors to Determine Maintenance. A court that
3-3 determines that a spouse is eligible to receive maintenance under
3-4 Section 3.9602 shall determine the nature, amount, duration, and
3-5 manner of periodic payments by considering all relevant factors,
3-6 including:
3-7 (1) the financial resources of the spouse seeking
3-8 maintenance, including the community and separate property and
3-9 liabilities apportioned to that spouse in the suit for divorce,
3-10 annulment, or to declare a marriage void, and that spouse's ability
3-11 to meet his or her needs independently;
3-12 (2) the education and employment skills of the spouses
3-13 and the time necessary to acquire sufficient education or training
3-14 to enable the spouse seeking maintenance to find appropriate
3-15 employment, the availability of that education or training, and the
3-16 feasibility of that education or training;
3-17 (3) the duration of the marriage;
3-18 (4) the age, employment history, earning ability, and
3-19 the physical and mental condition of the spouse seeking
3-20 maintenance;
3-21 (5) the ability of the spouse from whom maintenance is
3-22 sought to meet that spouse's personal needs and to provide periodic
3-23 child support payments, if applicable, while meeting the personal
3-24 needs of the spouse seeking maintenance;
3-25 (6) acts by either spouse resulting in excessive or
3-26 abnormal expenditures or destruction, concealment, or fraudulent
3-27 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 302,
4-14 Labor Code.
4-15 Sec. 3.9604. PRESUMPTION. (a) Except as provided by
4-16 Subsection (b), it is presumed that maintenance is not warranted
4-17 unless the spouse seeking maintenance has exercised diligence in:
4-18 (1) seeking suitable employment; or
4-19 (2) developing the necessary skills to become
4-20 self-supporting during any period of separation and during the
4-21 pendency of the divorce suit.
4-22 (b) This section does not apply to a spouse who:
4-23 (1) is not able to satisfy the presumption under
4-24 Subsection (a) because of an incapacitating physical or mental
4-25 disability;
4-26 (2) is the custodian of a child who requires
4-27 substantial care and personal supervision because a physical or
5-1 mental disability makes it necessary, taking into consideration the
5-2 needs of the child, that the spouse not be employed outside the
5-3 home; or
5-4 (3) is eligible for maintenance under Section
5-5 3.9602(1).
5-6 Sec. 3.9605. DURATION OF MAINTENANCE ORDER. (a) Except as
5-7 provided by Subsections (b) and (c), a court shall limit the
5-8 duration of a maintenance order to the shortest reasonable period
5-9 that allows the spouse seeking maintenance to meet the spouse's
5-10 minimum reasonable needs by obtaining appropriate employment or
5-11 developing an appropriate skill, not to exceed three years.
5-12 (b) If a spouse seeking maintenance is eligible for
5-13 maintenance under Section 3.9602(1), a court ordering maintenance
5-14 shall order that it be paid for at least the length of time for
5-15 which the spouse from whom maintenance is sought was placed under
5-16 community supervision. A court ordering maintenance for a person
5-17 who is eligible under Section 3.9602(1) shall request of the court
5-18 that placed the spouse from whom maintenance is sought under
5-19 community supervision that the court modify the conditions of
5-20 community supervision to include a new condition requiring that the
5-21 defendant pay spousal maintenance ordered under this subchapter.
5-22 (c) If a spouse seeking maintenance is unable to support his
5-23 or her minimum reasonable needs through appropriate employment
5-24 because of incapacitating physical or mental illness, the court may
5-25 order maintenance for an indefinite period for as long as the
5-26 disability continues. The court may order periodic review of its
5-27 order, on the request of either party or on its own motion, to
6-1 determine whether the disability is continuing. The continuation
6-2 of spousal maintenance under these circumstances is subject to a
6-3 motion to modify as provided by Section 3.9608.
6-4 Sec. 3.9606. AMOUNT OF MAINTENANCE. (a) A court may not
6-5 enter a maintenance order that requires a spouse to pay more than
6-6 the lesser of:
6-7 (1) $2,500; or
6-8 (2) 20 percent of the spouse's average monthly gross
6-9 income.
6-10 (b) The court shall set the amount that a spouse is required
6-11 to pay in a maintenance order to provide for the minimum reasonable
6-12 needs of the spouse receiving the maintenance under the order,
6-13 considering any employment or property received in the divorce or
6-14 annulment or otherwise owned by the spouse receiving the
6-15 maintenance that contributes to the minimum reasonable needs of
6-16 that spouse.
6-17 Sec. 3.9607. TERMINATION. (a) The obligation to pay future
6-18 maintenance terminates on the death of either party or on the
6-19 remarriage of the party receiving maintenance.
6-20 (b) After a hearing, the court shall terminate the
6-21 maintenance order if the party receiving maintenance cohabits with
6-22 another person in a permanent place of abode on a continuing,
6-23 conjugal basis.
6-24 Sec. 3.9608. Modification of Maintenance Order. (a) The
6-25 amount of maintenance specified in a court order or decree may be
6-26 reduced by the filing of a motion in the court that originally
6-27 entered the order. A party affected by the order or decree to be
7-1 modified may file the motion.
7-2 (b) Notice of a motion to modify maintenance and the
7-3 response, if any, are governed by the Texas Rules of Civil
7-4 Procedure applicable to the filing of an original lawsuit.
7-5 (c) After a hearing, the court may modify an original or
7-6 modified order or decree providing for maintenance on a proper
7-7 showing of a material and substantial change in circumstances of
7-8 either party. The court shall apply the modification only to
7-9 payments accruing after the filing of the motion to modify.
7-10 (d) A loss of employment or circumstances that render a
7-11 former spouse unable to support himself or herself through
7-12 appropriate employment by reason of incapacitating physical or
7-13 mental disability that occurs after the divorce or annulment are
7-14 not grounds for the institution of spousal maintenance for the
7-15 benefit of the former spouse.
7-16 Sec. 3.9609. Enforcement of Maintenance Order. (a) The
7-17 court may enforce by contempt its maintenance order or an agreement
7-18 for the payment of maintenance voluntarily entered into between
7-19 the parties and approved by the court.
7-20 (b) On the motion of a party entitled to receive maintenance
7-21 payments, the court may render judgment against a defaulting party
7-22 for an amount unpaid and owing after notice by service of citation,
7-23 answer, if any, and a hearing finding that the defaulting party has
7-24 failed or refused to carry out the terms of the order. The
7-25 judgment may be enforced by any means available for the enforcement
7-26 of judgments for debts.
7-27 (c) It is an affirmative defense to an allegation of
8-1 contempt of court or of the violation of a condition of probation
8-2 requiring payment of court-ordered maintenance that the obligor:
8-3 (1) lacked the ability to provide maintenance in the
8-4 amount ordered;
8-5 (2) lacked property that could be sold, mortgaged, or
8-6 otherwise pledged to raise the funds needed;
8-7 (3) attempted unsuccessfully to borrow the needed
8-8 funds; and
8-9 (4) did not know of a source from which the money
8-10 could have been borrowed or otherwise legally obtained.
8-11 (d) The issue of the existence of an affirmative defense
8-12 does not arise unless evidence is admitted supporting the defense.
8-13 If the issue of the existence of an affirmative defense arises, an
8-14 obligor must prove the affirmative defense by a preponderance of
8-15 the evidence.
8-16 Sec. 3.9610. Putative Spouse. In a suit to declare a
8-17 marriage void, a putative spouse who did not have knowledge of an
8-18 existing impediment to a valid marriage may be awarded maintenance
8-19 if otherwise qualified to receive maintenance under this
8-20 subchapter.
8-21 Sec. 3.9611. Unmarried Cohabitants. An order for
8-22 maintenance is not authorized between unmarried cohabitants under
8-23 any circumstances.
8-24 SECTION 3. (a) This Act takes effect September 1, 1995, and
8-25 applies only to an action filed on or after that date.
8-26 (b) An action to which this Act does not apply is governed
8-27 by the law in effect at the time the action was filed, and that law
9-1 is continued in effect only for that purpose.
9-2 SECTION 4. The importance of this legislation and the
9-3 crowded condition of the calendars in both houses create an
9-4 emergency and an imperative public necessity that the
9-5 constitutional rule requiring bills to be read on three several
9-6 days in each house be suspended, and this rule is hereby suspended.