By: Harris S.B. No. 334
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the recodification of statutes relating to the marriage
1-2 relationship.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. The Family Code is recodified by reenacting
1-5 Title 1 to read as follows:
1-6 TITLE 1. THE MARRIAGE RELATIONSHIP
1-7 SUBTITLE A. MARRIAGE
1-8 CHAPTER 1. GENERAL PROVISIONS
1-9 SUBCHAPTER A. DEFINITIONS
1-10 Sec. 1.001. APPLICABILITY OF DEFINITIONS. (a) The
1-11 definitions in this subchapter apply to this title.
1-12 (b) Except as provided by this subchapter, the definitions
1-13 in Chapter 101 apply to terms used in this title.
1-14 (c) If, in another part of this title, a term defined by
1-15 this subchapter has a meaning different from the meaning provided
1-16 by this subchapter, the meaning of that other provision prevails.
1-17 Sec. 1.002. COURT. "Court" means the district court,
1-18 juvenile court having the jurisdiction of a district court, or
1-19 other court expressly given jurisdiction of a suit under this
1-20 title.
1-21 Sec. 1.003. SUIT FOR DISSOLUTION OF MARRIAGE. "Suit for
1-22 dissolution of a marriage" includes a suit for divorce or annulment
1-23 or to declare a marriage void.
2-1 (Sections 1.004-1.100 reserved for expansion)
2-2 SUBCHAPTER B. PUBLIC POLICY
2-3 Sec. 1.101. EVERY MARRIAGE PRESUMED VALID. In order to
2-4 promote the public health and welfare and to provide the necessary
2-5 records, this code specifies detailed rules to be followed in
2-6 establishing the marriage relationship. However, in order to
2-7 provide stability for those entering into the marriage relationship
2-8 in good faith and to provide for an orderly determination of
2-9 parentage and security for the children of the relationship, it is
2-10 the policy of this state to preserve and uphold each marriage
2-11 against claims of invalidity unless a strong reason exists for
2-12 holding the marriage void or voidable. Therefore, every marriage
2-13 entered into in this state is presumed to be valid unless expressly
2-14 made void by Chapter 6 or unless expressly made voidable by Chapter
2-15 6 and annulled as provided by that chapter.
2-16 Sec. 1.102. MOST RECENT MARRIAGE PRESUMED VALID. When two
2-17 or more marriages of a person to different spouses are alleged, the
2-18 most recent marriage is presumed to be valid as against each
2-19 marriage that precedes the most recent marriage until one who
2-20 asserts the validity of a prior marriage proves the validity of the
2-21 prior marriage.
2-22 Sec. 1.103. PERSONS MARRIED ELSEWHERE. The law of this
2-23 state applies to persons married elsewhere who are domiciled in
2-24 this state.
2-25 Sec. 1.104. CAPACITY OF SPOUSE. Except as expressly
3-1 provided by statute or by the constitution, a person, regardless of
3-2 age, who has been married in accordance with the law of this state
3-3 has the capacity and power of an adult, including the capacity to
3-4 contract.
3-5 Sec. 1.105. JOINDER IN CIVIL SUITS. (a) A spouse may sue
3-6 and be sued without the joinder of the other spouse.
3-7 (b) When claims or liabilities are joint and several, the
3-8 spouses may be joined under the rules relating to joinder of
3-9 parties generally.
3-10 Sec. 1.106. CRIMINAL CONVERSATION NOT AUTHORIZED. A right
3-11 of action by one spouse against a third party for criminal
3-12 conversation is not authorized in this state.
3-13 Sec. 1.107. ALIENATION OF AFFECTION NOT AUTHORIZED. A right
3-14 of action by one spouse against a third party for alienation of
3-15 affection is not authorized in this state.
3-16 Sec. 1.108. PROMISE OR AGREEMENT MUST BE IN WRITING. A
3-17 promise or agreement made on consideration of marriage or
3-18 nonmarital conjugal cohabitation is not enforceable unless the
3-19 promise or agreement or a memorandum of the promise or agreement is
3-20 in writing and signed by the person obligated by the promise or
3-21 agreement.
3-22 CHAPTER 2. THE MARRIAGE RELATIONSHIP
3-23 SUBCHAPTER A. APPLICATION FOR MARRIAGE LICENSE
3-24 Sec. 2.001. MARRIAGE LICENSE. (a) A man and a woman
3-25 desiring to enter into a ceremonial marriage must obtain a marriage
4-1 license from the county clerk of any county of this state.
4-2 (b) A license may not be issued for the marriage of persons
4-3 of the same sex.
4-4 Sec. 2.002. Application for License. Except as provided by
4-5 Section 2.006, each person applying for a license must:
4-6 (1) appear before the county clerk;
4-7 (2) submit the person's proof of identity and age as
4-8 provided by this subchapter;
4-9 (3) provide the information applicable to that person
4-10 for which spaces are provided in the application for a marriage
4-11 license;
4-12 (4) mark the appropriate boxes provided in the
4-13 application; and
4-14 (5) take the oath printed on the application and sign
4-15 the application before the county clerk.
4-16 Sec. 2.003. Application for License by Minor. In addition
4-17 to the other requirements provided by this chapter, a person under
4-18 18 years of age applying for a license must provide to the county
4-19 clerk:
4-20 (1) documents establishing, as provided by Section
4-21 2.102, parental consent for the person to the marriage;
4-22 (2) documents establishing that a prior marriage of
4-23 the person has been dissolved; or
4-24 (3) a court order granted under Section 2.103
4-25 authorizing the marriage of the person.
5-1 Sec. 2.004. Application Form. (a) The county clerk shall
5-2 furnish the application form as prescribed by the bureau of vital
5-3 statistics.
5-4 (b) The application form must contain:
5-5 (1) a heading entitled "Application for Marriage
5-6 License, ____________ County, Texas";
5-7 (2) spaces for each applicant's full name, including
5-8 the woman's maiden surname, address, social security number, if
5-9 any, date of birth, and place of birth, including city, county, and
5-10 state;
5-11 (3) a space for indicating the document tendered by
5-12 each applicant as proof of identity and age;
5-13 (4) spaces for indicating whether each applicant has
5-14 been divorced within the last 30 days;
5-15 (5) printed boxes for each applicant to check "true"
5-16 or "false" in response to the following statement: "I am not
5-17 presently married.";
5-18 (6) printed boxes for each applicant to check "true"
5-19 or "false" in response to the following statement: "The other
5-20 applicant is not related to me as:
5-21 (A) an ancestor or descendant, by blood or
5-22 adoption;
5-23 (B) a brother or sister, of the whole or half
5-24 blood or by adoption;
5-25 (C) a parent's brother or sister, of the whole
6-1 or half blood or by adoption; or
6-2 (D) a son or daughter of a brother or sister, of
6-3 the whole or half blood or by adoption.";
6-4 (7) a printed oath reading: "I SOLEMNLY SWEAR (OR
6-5 AFFIRM) THAT THE INFORMATION I HAVE GIVEN IN THIS APPLICATION IS
6-6 CORRECT.";
6-7 (8) spaces immediately below the printed oath for the
6-8 applicants' signatures;
6-9 (9) a certificate of the county clerk that:
6-10 (A) each applicant made the oath and the date
6-11 and place that it was made; or
6-12 (B) an applicant did not appear personally but
6-13 the prerequisites for the license have been fulfilled as provided
6-14 by this chapter;
6-15 (10) spaces for indicating the date of the marriage
6-16 and the county in which the marriage is performed; and
6-17 (11) a space for the address to which the applicants
6-18 desire the completed license to be mailed.
6-19 Sec. 2.005. Proof of Identity and Age. (a) The county
6-20 clerk shall require proof of the identity and age of each
6-21 applicant.
6-22 (b) The proof must be established by a certified copy of the
6-23 applicant's birth certificate or by some certificate, license, or
6-24 document issued by this state or another state, the United States,
6-25 or a foreign government.
7-1 Sec. 2.006. Absent Applicant. (a) If an applicant is
7-2 unable to appear personally before the county clerk to apply for a
7-3 marriage license, any adult person or the other applicant may apply
7-4 on behalf of the absent applicant.
7-5 (b) The person applying on behalf of an absent applicant
7-6 shall provide to the clerk:
7-7 (1) the affidavit of the absent applicant as provided
7-8 by this subchapter;
7-9 (2) proof of the identity and age of the absent
7-10 applicant as provided by this subchapter; and
7-11 (3) if required because the absent applicant is a
7-12 person under 18 years of age, the documents establishing parental
7-13 consent, documents establishing that a prior marriage has been
7-14 dissolved, or a court order authorizing the marriage of the absent,
7-15 underage applicant.
7-16 Sec. 2.007. AFFIDAVIT OF ABSENT APPLICANT. The affidavit of
7-17 an absent applicant must include:
7-18 (1) the absent applicant's full name, including the
7-19 maiden surname of a female applicant, address, date of birth, place
7-20 of birth, including city, county, and state, citizenship, and
7-21 social security number, if any;
7-22 (2) a declaration that the absent applicant has not
7-23 been divorced within the last 30 days;
7-24 (3) a declaration that the absent applicant is:
7-25 (A) not presently married; or
8-1 (B) married to the other applicant and they wish
8-2 to marry again;
8-3 (4) a declaration that the other applicant is not
8-4 related to the absent applicant as:
8-5 (A) an ancestor or descendant, by blood or
8-6 adoption;
8-7 (B) a brother or sister, of the whole or half
8-8 blood or by adoption;
8-9 (C) a parent's brother or sister, of the whole
8-10 or half blood or by adoption; or
8-11 (D) a son or daughter of a brother or sister, of
8-12 the whole or half blood or by adoption;
8-13 (5) a declaration that the absent applicant desires to
8-14 marry and the name, age, and address of the person to whom the
8-15 absent applicant desires to be married;
8-16 (6) the approximate date on which the marriage is to
8-17 occur;
8-18 (7) the reason the absent applicant is unable to
8-19 appear personally before the county clerk for the issuance of the
8-20 license; and
8-21 (8) if the absent applicant will be unable to attend
8-22 the ceremony, the appointment of any adult, other than the other
8-23 applicant, to act as proxy for the purpose of participating in the
8-24 ceremony.
8-25 Sec. 2.008. Execution of Application by Clerk. (a) The
9-1 county clerk shall:
9-2 (1) determine that all necessary information, other
9-3 than the date of the marriage ceremony, the county in which the
9-4 ceremony is conducted, and the name of the person who performs the
9-5 ceremony, is recorded on the application and that all necessary
9-6 documents are submitted;
9-7 (2) administer the oath to each applicant appearing
9-8 before the clerk;
9-9 (3) have each applicant appearing before the clerk
9-10 sign the application in the clerk's presence; and
9-11 (4) execute the clerk's certificate on the
9-12 application.
9-13 (b) A person appearing before the clerk on behalf of an
9-14 absent applicant is not required to take the oath on behalf of the
9-15 absent applicant.
9-16 Sec. 2.009. Issuance of License. (a) Except as provided by
9-17 Subsection (b), the county clerk may not issue a license if either
9-18 applicant:
9-19 (1) fails to provide the information required by this
9-20 subchapter;
9-21 (2) fails to submit proof of age and identity;
9-22 (3) is under 14 years of age and has not been granted
9-23 a court order as provided by Section 2.103;
9-24 (4) is 14 years of age or older but under 18 years of
9-25 age and has not presented at least one of the following:
10-1 (A) parental consent as provided by Section
10-2 2.102;
10-3 (B) documents establishing that a prior marriage
10-4 of the applicant has been dissolved; or
10-5 (C) a court order as provided by Section 2.103;
10-6 (5) checks "false" in response to a statement in the
10-7 application, except as provided by Subsection (b), or fails to make
10-8 a required declaration in an affidavit required of an absent
10-9 applicant; or
10-10 (6) indicates that the applicant has been divorced by
10-11 a decree of a court of this state within the last 30 days, unless:
10-12 (A) the applicants were divorced from each
10-13 other; or
10-14 (B) the prohibition against remarriage is waived
10-15 as provided by Section 6.802.
10-16 (b) If an applicant checks "false" in response to the
10-17 statement "I am not presently married," the county clerk shall
10-18 inquire as to whether the applicant is presently married to the
10-19 other applicant. If the applicant states that the applicant is
10-20 currently married to the other applicant, the county clerk shall
10-21 record that statement on the license before the administration of
10-22 the oath. The county clerk may not refuse to issue a license on
10-23 the ground that the applicants are already married to each other.
10-24 (c) On the proper execution of the application, the clerk
10-25 shall:
11-1 (1) prepare the license;
11-2 (2) record on the reverse side of the license the
11-3 names of the licensees, the date that the license is issued, and,
11-4 if applicable, the name of the person appointed to act as proxy for
11-5 an absent applicant, if any;
11-6 (3) record the time at which the license was issued;
11-7 and
11-8 (4) distribute to each applicant printed materials
11-9 about acquired immune deficiency syndrome (AIDS) and human
11-10 immunodeficiency virus (HIV) and note on the license that the
11-11 distribution was made.
11-12 Sec. 2.010. AIDS INFORMATION. Materials providing
11-13 information about acquired immune deficiency syndrome (AIDS) and
11-14 human immunodeficiency virus (HIV) shall be prepared and provided
11-15 to the clerk by the Texas Department of Health and shall be
11-16 designed to inform the applicants about:
11-17 (1) the incidence and mode of transmission of AIDS and
11-18 HIV;
11-19 (2) the local availability of medical procedures,
11-20 including voluntary testing, designed to show or help show whether
11-21 a person has AIDS or HIV infection, antibodies to HIV, or infection
11-22 with any other probable causative agent of AIDS; and
11-23 (3) available and appropriate counseling services
11-24 regarding AIDS and HIV infection.
11-25 Sec. 2.011. RECORDING. The county clerk shall record all
12-1 licenses issued by the clerk and all documents submitted with an
12-2 application for a license or note a summary of the documents on the
12-3 application.
12-4 Sec. 2.012. VIOLATION BY COUNTY CLERK; PENALTY. A county
12-5 clerk or deputy county clerk who violates or fails to comply with
12-6 this subchapter commits an offense. An offense under this section
12-7 is a misdemeanor punishable by a fine of not less than $200 and not
12-8 more than $500.
12-9 (Sections 2.013-2.100 reserved for expansion)
12-10 SUBCHAPTER B. UNDERAGE APPLICANTS
12-11 Sec. 2.101. GENERAL AGE REQUIREMENT. Except as otherwise
12-12 provided by this subchapter or on a showing that a prior marriage
12-13 has been dissolved, a county clerk may not issue a marriage license
12-14 if either applicant is under 18 years of age.
12-15 Sec. 2.102. PARENTAL CONSENT FOR UNDERAGE APPLICANT.
12-16 (a) If an applicant is 14 years of age or older but under 18 years
12-17 of age, the county clerk shall issue the license if parental
12-18 consent is given as provided by this section.
12-19 (b) Parental consent must be evidenced by a written
12-20 declaration on a form supplied by the county clerk in which the
12-21 person consents to the marriage and swears that the person is a
12-22 parent (if there is no judicially designated managing conservator
12-23 or guardian of the applicant's person) or a judicially designated
12-24 managing conservator or guardian (whether an individual, authorized
12-25 agency, or court) of the applicant's person.
13-1 (c) Except as otherwise provided by this section, consent
13-2 must be acknowledged before a county clerk.
13-3 (d) If the person giving parental consent resides in another
13-4 state, the consent may be acknowledged before an officer authorized
13-5 to issue marriage licenses in that state.
13-6 (e) If the person giving parental consent is unable because
13-7 of illness or incapacity to comply with the provisions of
13-8 Subsection (c) or (d), the consent may be acknowledged before any
13-9 officer authorized to take acknowledgments. A consent under this
13-10 subsection must be accompanied by a physician's affidavit stating
13-11 that the person giving parental consent is unable to comply because
13-12 of illness or incapacity.
13-13 (f) Parental consent must be given at the time the
13-14 application for the marriage license is made or not earlier than
13-15 the 30th day preceding the date the application is made.
13-16 Sec. 2.103. COURT ORDER FOR UNDERAGE APPLICANT. (a) A
13-17 minor may petition the court in the minor's own name for an order
13-18 granting permission to marry. In a suit under this section, the
13-19 trial judge may advance the suit if the best interest of the
13-20 applicant would be served by an early hearing.
13-21 (b) The petition must be filed in the county where a parent
13-22 resides if a managing conservator or a guardian of the person has
13-23 not been appointed. If a managing conservator or a guardian of the
13-24 person has been appointed, the petition must be filed in the county
13-25 where the managing conservator or the guardian of the person
14-1 resides. If no person authorized to consent to marriage for the
14-2 minor resides in this state, the petition must be filed in the
14-3 county where the minor lives.
14-4 (c) The petition must include:
14-5 (1) a statement of the reasons the minor desires to
14-6 marry;
14-7 (2) a statement of whether each parent is living or is
14-8 dead;
14-9 (3) the name and residence address of each living
14-10 parent; and
14-11 (4) a statement of whether a managing conservator or a
14-12 guardian of the person has been appointed for the minor.
14-13 (d) Process shall be served as in other civil cases on each
14-14 living parent of the minor or, if a managing conservator or a
14-15 guardian of the person has been appointed, on the managing
14-16 conservator or guardian of the person. Citation may be given by
14-17 publication as in other civil cases, except that notice shall be
14-18 published one time only.
14-19 (e) The court shall appoint a guardian ad litem to represent
14-20 the minor in the proceeding and to speak for or against the
14-21 petition in the manner the guardian ad litem believes to be in the
14-22 best interest of the minor. The court shall specify a fee to be
14-23 paid by the minor for the services of the guardian ad litem. The
14-24 fee shall be collected in the same manner as other costs of the
14-25 proceeding.
15-1 (f) If after a hearing the court, sitting without a jury,
15-2 believes marriage to be in the best interest of the minor, the
15-3 court, by order, shall grant the minor permission to marry.
15-4 (Sections 2.104-2.200 reserved for expansion)
15-5 SUBCHAPTER C. CEREMONY AND RETURN OF LICENSE
15-6 Sec. 2.201. EXPIRATION OF LICENSE. If a marriage ceremony
15-7 has not been conducted before the 31st day after the date the
15-8 license is issued, the marriage license expires.
15-9 Sec. 2.202. PERSONS AUTHORIZED TO CONDUCT CEREMONY.
15-10 (a) The following persons are authorized to conduct a marriage
15-11 ceremony:
15-12 (1) a licensed or ordained Christian minister or
15-13 priest;
15-14 (2) a Jewish rabbi;
15-15 (3) a person who is an officer of a religious
15-16 organization and who is authorized by the organization to conduct a
15-17 marriage ceremony; and
15-18 (4) a justice of the supreme court, judge of the court
15-19 of criminal appeals, justice of the courts of appeals, judge of the
15-20 district, county, and probate courts, judge of the county courts at
15-21 law, judge of the courts of domestic relations, judge of the
15-22 juvenile courts, retired justice or judge of those courts, justice
15-23 of the peace, retired justice of the peace, or judge or magistrate
15-24 of a federal court of this state.
15-25 (b) For the purposes of this section, a retired judge or
16-1 justice is a former judge or justice who is vested in the Judicial
16-2 Retirement System of Texas Plan One or the Judicial Retirement
16-3 System of Texas Plan Two or who has an aggregate of at least 12
16-4 years of service as judge or justice of any type listed in
16-5 Subsection (a)(4).
16-6 Sec. 2.203. CEREMONY. (a) On receiving an unexpired
16-7 marriage license, an authorized person may conduct the marriage
16-8 ceremony as provided by this subchapter.
16-9 (b) A person unable to appear for the ceremony may assent to
16-10 marriage by the appearance of a proxy appointed in the affidavit
16-11 authorized by Subchapter A.
16-12 Sec. 2.204. 72-HOUR WAITING PERIOD; EXCEPTIONS. (a) Except
16-13 as provided by this section, a marriage ceremony may not take place
16-14 during the 72-hour period immediately following the issuance of the
16-15 marriage license.
16-16 (b) The 72-hour waiting period after issuance of a marriage
16-17 license does not apply to an applicant who:
16-18 (1) is a member of the armed forces of the United
16-19 States and on active duty; or
16-20 (2) obtains a written waiver under Subsection (c).
16-21 (c) An applicant may request a judge of a court with
16-22 jurisdiction in family law cases, a justice of the supreme court, a
16-23 judge of the court of criminal appeals, or a judge of a court of
16-24 appeals for a written waiver permitting the marriage ceremony to
16-25 take place during the 72-hour period immediately following the
17-1 issuance of the marriage license. If the judge finds that there is
17-2 good cause for the marriage to take place during the period, the
17-3 judge shall sign the waiver.
17-4 Sec. 2.205. DISCRIMINATION IN CONDUCTING MARRIAGE
17-5 PROHIBITED. (a) A person authorized to conduct a marriage
17-6 ceremony by this subchapter is prohibited from discriminating on
17-7 the basis of race, religion, or national origin against an
17-8 applicant who is otherwise competent to be married.
17-9 (b) On a finding by the State Commission on Judicial Conduct
17-10 that a person has intentionally violated Subsection (a), the
17-11 commission may recommend to the supreme court that the person be
17-12 removed from office.
17-13 Sec. 2.206. RETURN OF LICENSE; PENALTY. (a) The person who
17-14 conducts a marriage ceremony shall record on the license the date
17-15 on which and the county in which the ceremony is performed and the
17-16 person's name, subscribe the license, and return the license to the
17-17 county clerk who issued it not later than the 30th day after the
17-18 date the ceremony is conducted.
17-19 (b) A person who fails to comply with this section commits
17-20 an offense. An offense under this section is a misdemeanor
17-21 punishable by a fine of not less than $200 and not more than $500.
17-22 Sec. 2.207. MARRIAGE CONDUCTED AFTER LICENSE EXPIRED;
17-23 PENALTY. (a) A person who is to conduct a marriage ceremony shall
17-24 determine whether the license has expired from the county clerk's
17-25 endorsement on the license.
18-1 (b) A person who conducts a marriage ceremony after the
18-2 marriage license has expired commits an offense. An offense under
18-3 this section is a misdemeanor punishable by a fine of not less than
18-4 $200 and not more than $500.
18-5 Sec. 2.208. RECORDING AND DELIVERY OF LICENSE. (a) The
18-6 county clerk shall record a returned marriage license and mail the
18-7 license to the address indicated on the application.
18-8 (b) On the application form the county clerk shall record:
18-9 (1) the date of the marriage ceremony;
18-10 (2) the county in which the ceremony was conducted;
18-11 and
18-12 (3) the name of the person who conducted the ceremony.
18-13 Sec. 2.209. DUPLICATE LICENSE. (a) On the application and
18-14 proof of identity of a person whose marriage is recorded in the
18-15 records of the county clerk, the county clerk shall issue a
18-16 duplicate marriage license completed with information as contained
18-17 in the records.
18-18 (b) On the application and proof of identity of both persons
18-19 to whom a marriage license was issued but not recorded as required
18-20 by Section 2.208, the county clerk shall issue a duplicate license
18-21 if each person applying submits to the clerk an affidavit stating:
18-22 (1) that the persons to whom the original license was
18-23 issued were married to each other before the expiration date of the
18-24 original license by a person authorized to conduct a marriage
18-25 ceremony;
19-1 (2) the name of the person who conducted the ceremony;
19-2 and
19-3 (3) the date of the ceremony.
19-4 (Sections 2.210-2.300 reserved for expansion)
19-5 SUBCHAPTER D. VALIDITY OF MARRIAGE
19-6 Sec. 2.301. FRAUD, MISTAKE, OR ILLEGALITY IN OBTAINING
19-7 LICENSE. Except as otherwise provided by this chapter, the
19-8 validity of a marriage is not affected by any fraud, mistake, or
19-9 illegality that occurred in obtaining the marriage license.
19-10 Sec. 2.302. CEREMONY CONDUCTED BY UNAUTHORIZED PERSON. The
19-11 validity of a marriage is not affected by the lack of authority of
19-12 the person conducting the marriage ceremony if:
19-13 (1) there was a reasonable appearance of authority by
19-14 that person; and
19-15 (2) at least one party to the marriage participated in
19-16 the ceremony in good faith and that party treats the marriage as
19-17 valid.
19-18 (Sections 2.303-2.400 reserved for expansion)
19-19 SUBCHAPTER E. MARRIAGE WITHOUT FORMALITIES
19-20 Sec. 2.401. PROOF OF INFORMAL MARRIAGE. (a) In a judicial,
19-21 administrative, or other proceeding, the marriage of a man and
19-22 woman may be proved by evidence that:
19-23 (1) a declaration of their marriage has been signed as
19-24 provided by this subchapter; or
19-25 (2) the man and woman agreed to be married and after
20-1 the agreement they lived together in this state as husband and wife
20-2 and there represented to others that they were married.
20-3 (b) If a proceeding in which a marriage is to be proved as
20-4 provided by Subsection (a)(2) is not commenced before the second
20-5 anniversary of the date on which the parties separated and ceased
20-6 living together, it is rebuttably presumed that the parties did not
20-7 enter into an agreement to be married.
20-8 Sec. 2.402. DECLARATION AND REGISTRATION OF INFORMAL
20-9 MARRIAGE. (a) A declaration of informal marriage must be signed
20-10 on a form prescribed by the bureau of vital statistics and provided
20-11 by the county clerk. Each party to the declaration shall provide
20-12 the information required in the form.
20-13 (b) The declaration form must contain:
20-14 (1) a heading entitled "Declaration and Registration
20-15 of Informal Marriage, ___________ County, Texas";
20-16 (2) spaces for each party's full name, including the
20-17 woman's maiden surname, address, date of birth, place of birth,
20-18 including city, county, and state, and social security number, if
20-19 any;
20-20 (3) a space for indicating the type of document
20-21 tendered by each party as proof of age and identity;
20-22 (4) printed boxes for each party to check "true" or
20-23 "false" in response to the following statement: "The other party
20-24 is not related to me as:
20-25 (A) an ancestor or descendant, by blood or
21-1 adoption;
21-2 (B) a brother or sister, of the whole or half
21-3 blood or by adoption;
21-4 (C) a parent's brother or sister, of the whole
21-5 or half blood or by adoption; or
21-6 (D) a son or daughter of a brother or sister, of
21-7 the whole or half blood or by adoption.";
21-8 (5) a printed declaration and oath reading: "I
21-9 SOLEMNLY SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO
21-10 EACH OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE) WE
21-11 AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED TOGETHER AS
21-12 HUSBAND AND WIFE AND IN THIS STATE WE REPRESENTED TO OTHERS THAT WE
21-13 WERE MARRIED. SINCE THE DATE OF MARRIAGE TO THE OTHER PARTY I HAVE
21-14 NOT BEEN MARRIED TO ANY OTHER PERSON. THIS DECLARATION IS TRUE AND
21-15 THE INFORMATION IN IT WHICH I HAVE GIVEN IS CORRECT.";
21-16 (6) spaces immediately below the printed declaration
21-17 and oath for the parties' signatures; and
21-18 (7) a certificate of the county clerk that the parties
21-19 made the declaration and oath and the place and date it was made.
21-20 (c) If either party is underage at the time of filing a
21-21 declaration, the declaration must have attached an acknowledged
21-22 consent signed by a parent of each underage person.
21-23 Sec. 2.403. PROOF OF IDENTITY AND AGE. The county clerk
21-24 shall require proof of the identity and age of each party to the
21-25 declaration of informal marriage to be established by a certified
22-1 copy of the party's birth certificate or by some certificate,
22-2 license, or document issued by this state or another state, the
22-3 United States, or a foreign government.
22-4 Sec. 2.404. RECORDING OF DECLARATION OF INFORMAL MARRIAGE.
22-5 (a) The county clerk shall:
22-6 (1) determine that all necessary information is
22-7 recorded on the declaration of informal marriage form and that all
22-8 necessary documents are submitted to the clerk;
22-9 (2) administer the oath to each party to the
22-10 declaration;
22-11 (3) have each party sign the declaration in the
22-12 clerk's presence; and
22-13 (4) execute the clerk's certificate to the
22-14 declaration.
22-15 (b) The county clerk may not certify or record the
22-16 declaration if:
22-17 (1) either party fails to supply any information or
22-18 provide any document required by this subchapter;
22-19 (2) either party is under 16 years of age and waiver
22-20 of the age requirement has not been ordered; or
22-21 (3) either party checks "false" in response to the
22-22 statement of relationship to the other party.
22-23 (c) On execution of the declaration, the county clerk shall
22-24 record the declaration and all documents submitted with the
22-25 declaration or note a summary of them on the declaration form,
23-1 deliver the original of the declaration to the parties, and send a
23-2 copy to the bureau of vital statistics.
23-3 (d) A declaration recorded as provided in this section is
23-4 prima facie evidence of the marriage of the parties.
23-5 (e) At the time the parties sign the declaration, the clerk
23-6 shall distribute to each party printed materials about acquired
23-7 immune deficiency syndrome (AIDS) and human immunodeficiency virus
23-8 (HIV). The clerk shall note on the declaration that the
23-9 distribution was made. The materials shall be prepared and
23-10 provided to the clerk by the Texas Department of Health and shall
23-11 be designed to inform the parties about:
23-12 (1) the incidence and mode of transmission of AIDS and
23-13 HIV;
23-14 (2) the local availability of medical procedures,
23-15 including voluntary testing, designed to show or help show whether
23-16 a person has AIDS or HIV infection, antibodies to HIV, or infection
23-17 with any other probable causative agent of AIDS; and
23-18 (3) available and appropriate counseling services
23-19 regarding AIDS and HIV infection.
23-20 Sec. 2.405. VIOLATION BY COUNTY CLERK; PENALTY. A county
23-21 clerk or deputy county clerk who violates this subchapter commits
23-22 an offense. An offense under this section is a misdemeanor
23-23 punishable by a fine of not less than $200 and not more than $500.
23-24 (Sections 2.406-2.500 reserved for expansion)
24-1 SUBCHAPTER F. RIGHTS AND DUTIES OF SPOUSES
24-2 Sec. 2.501. DUTY TO SUPPORT. (a) Each spouse has the duty
24-3 to support the other spouse.
24-4 (b) A spouse who fails to discharge the duty of support is
24-5 liable to any person who provides necessaries to the spouse to whom
24-6 support is owed.
24-7 SUBTITLE B. PROPERTY RIGHTS AND LIABILITIES
24-8 CHAPTER 3. MARITAL PROPERTY RIGHTS AND LIABILITIES
24-9 SUBCHAPTER A. GENERAL RULES FOR SEPARATE AND COMMUNITY PROPERTY
24-10 Sec. 3.001. SEPARATE PROPERTY. A spouse's separate property
24-11 consists of:
24-12 (1) the property owned or claimed by the spouse before
24-13 marriage;
24-14 (2) the property acquired by the spouse during
24-15 marriage by gift, devise, or descent; and
24-16 (3) the recovery for personal injuries sustained by
24-17 the spouse during marriage, except any recovery for loss of earning
24-18 capacity during marriage.
24-19 Sec. 3.002. COMMUNITY PROPERTY. Community property consists
24-20 of the property, other than separate property, acquired by either
24-21 spouse during marriage.
24-22 Sec. 3.003. PRESUMPTION OF COMMUNITY PROPERTY.
24-23 (a) Property possessed by either spouse during or on dissolution
24-24 of marriage is presumed to be community property.
24-25 (b) The degree of proof necessary to establish that property
25-1 is separate property is clear and convincing evidence.
25-2 Sec. 3.004. RECORDATION OF SEPARATE PROPERTY. (a) A
25-3 subscribed and acknowledged schedule of a spouse's separate
25-4 property may be recorded in the deed records of the county in which
25-5 the parties, or one of them, reside and in the county or counties
25-6 in which the real property is located.
25-7 (b) A schedule of a spouse's separate real property is not
25-8 constructive notice to a good faith purchaser for value or a
25-9 creditor without actual notice unless the instrument is
25-10 acknowledged and recorded in the deed records of the county in
25-11 which the real property is located.
25-12 Sec. 3.005. GIFTS BETWEEN SPOUSES. If one spouse makes a
25-13 gift of property to the other spouse, the gift is presumed to
25-14 include all the income and property that may arise from that
25-15 property.
25-16 (Sections 3.006-3.100 reserved for expansion)
25-17 SUBCHAPTER B. MANAGEMENT, CONTROL, AND DISPOSITION OF
25-18 MARITAL PROPERTY
25-19 Sec. 3.101. MANAGING SEPARATE PROPERTY. Each spouse has the
25-20 sole management, control, and disposition of that spouse's separate
25-21 property.
25-22 Sec. 3.102. MANAGING COMMUNITY PROPERTY. (a) During
25-23 marriage, each spouse has the sole management, control, and
25-24 disposition of the community property that the spouse would have
25-25 owned if single, including:
26-1 (1) personal earnings;
26-2 (2) revenue from separate property;
26-3 (3) recoveries for personal injuries; and
26-4 (4) the increase and mutations of, and the revenue
26-5 from, all property subject to the spouse's sole management,
26-6 control, and disposition.
26-7 (b) If community property subject to the sole management,
26-8 control, and disposition of one spouse is mixed or combined with
26-9 community property subject to the sole management, control, and
26-10 disposition of the other spouse, then the mixed or combined
26-11 community property is subject to the joint management, control, and
26-12 disposition of the spouses, unless the spouses provide otherwise by
26-13 power of attorney in writing or other agreement.
26-14 (c) Except as provided by Subsection (a), community property
26-15 is subject to the joint management, control, and disposition of the
26-16 spouses unless the spouses provide otherwise by power of attorney
26-17 in writing or other agreement.
26-18 Sec. 3.103. MANAGING EARNINGS OF MINOR. During the marriage
26-19 of the parents of an unemancipated minor for whom a managing
26-20 conservator has not been appointed, the earnings of the minor are
26-21 subject to the joint management, control, and disposition of the
26-22 parents of the minor, unless otherwise provided by agreement of the
26-23 parents or by judicial order.
26-24 Sec. 3.104. PROTECTION OF THIRD PERSONS. (a) During
26-25 marriage, property is presumed to be subject to the sole
27-1 management, control, and disposition of a spouse if it is held in
27-2 that spouse's name, as shown by muniment, contract, deposit of
27-3 funds, or other evidence of ownership, or if it is in that spouse's
27-4 possession and is not subject to such evidence of ownership.
27-5 (b) A third person dealing with a spouse is entitled to
27-6 rely, as against the other spouse or anyone claiming from that
27-7 spouse, on that spouse's authority to deal with the property if:
27-8 (1) the property is presumed to be subject to the sole
27-9 management, control, and disposition of the spouse; and
27-10 (2) the person dealing with the spouse:
27-11 (A) is not a party to a fraud on the other
27-12 spouse or another person; and
27-13 (B) does not have actual or constructive notice
27-14 of the spouse's lack of authority.
27-15 (Sections 3.105-3.200 reserved for expansion)
27-16 SUBCHAPTER C. MARITAL PROPERTY LIABILITIES
27-17 Sec. 3.201. SPOUSAL LIABILITY. (a) A person is personally
27-18 liable for the acts of the person's spouse only if:
27-19 (1) the spouse acts as an agent for the person; or
27-20 (2) the spouse incurs a debt for necessaries as
27-21 provided by Subchapter F, Chapter 2.
27-22 (b) Except as provided by this subchapter, community
27-23 property is not subject to a liability that arises from an act of a
27-24 spouse.
27-25 (c) A spouse does not act as an agent for the other spouse
28-1 solely because of the marriage relationship.
28-2 Sec. 3.202. RULES OF MARITAL PROPERTY LIABILITY. (a) A
28-3 spouse's separate property is not subject to liabilities of the
28-4 other spouse unless both spouses are liable by other rules of law.
28-5 (b) Unless both spouses are personally liable as provided by
28-6 this subchapter, the community property subject to a spouse's sole
28-7 management, control, and disposition is not subject to:
28-8 (1) any liabilities that the other spouse incurred
28-9 before marriage; or
28-10 (2) any nontortious liabilities that the other spouse
28-11 incurs during marriage.
28-12 (c) The community property subject to a spouse's sole or
28-13 joint management, control, and disposition is subject to the
28-14 liabilities incurred by the spouse before or during marriage.
28-15 (d) All community property is subject to tortious liability
28-16 of either spouse incurred during marriage.
28-17 Sec. 3.203. ORDER IN WHICH PROPERTY IS SUBJECT TO EXECUTION.
28-18 (a) A judge may determine, as deemed just and equitable, the order
28-19 in which particular separate or community property is subject to
28-20 execution and sale to satisfy a judgment, if the property subject
28-21 to liability for a judgment includes any combination of:
28-22 (1) a spouse's separate property;
28-23 (2) community property subject to a spouse's sole
28-24 management, control, and disposition;
28-25 (3) community property subject to the other spouse's
29-1 sole management, control, and disposition; and
29-2 (4) community property subject to the spouses' joint
29-3 management, control, and disposition.
29-4 (b) In determining the order in which particular property is
29-5 subject to execution and sale, the judge shall consider the facts
29-6 surrounding the transaction or occurrence on which the suit is
29-7 based.
29-8 (Sections 3.204-3.300 reserved for expansion)
29-9 SUBCHAPTER D. MANAGEMENT, CONTROL, AND DISPOSITION OF
29-10 MARITAL PROPERTY UNDER UNUSUAL CIRCUMSTANCES
29-11 Sec. 3.301. INCAPACITATED, MISSING, ABANDONED, OR SEPARATED
29-12 SPOUSE. (a) A spouse may file a sworn petition stating the facts
29-13 that make it desirable for the petitioning spouse to manage,
29-14 control, and dispose of community property described or defined in
29-15 the petition that would otherwise be subject to the sole or joint
29-16 management, control, and disposition of the other spouse if:
29-17 (1) because of physical or mental incapacity, the
29-18 other spouse is unable to manage, control, or dispose of the
29-19 community property subject to that spouse's sole or joint
29-20 management, control, and disposition;
29-21 (2) the other spouse has disappeared and that spouse's
29-22 location remains unknown to the petitioning spouse, unless the
29-23 spouse is reported to be a prisoner of war or missing on public
29-24 service;
29-25 (3) the other spouse has permanently abandoned the
30-1 petitioning spouse; or
30-2 (4) the spouses are permanently separated.
30-3 (b) The petition may be filed in a court in the county in
30-4 which the petitioner resided at the time the incapacity or
30-5 separation began, or the abandonment or disappearance occurred, not
30-6 earlier than the 60th day after the date of the occurrence of the
30-7 event. If both spouses are nonresidents of this state at the time
30-8 the petition is filed, the petition may be filed in a court in a
30-9 county in which any part of the described or defined community
30-10 property is located.
30-11 Sec. 3.302. SPOUSE MISSING ON PUBLIC SERVICE. (a) If a
30-12 spouse is reported by an executive department of the United States
30-13 to be a prisoner of war or missing on the public service of the
30-14 United States, the spouse of the prisoner of war or missing person
30-15 may file a sworn petition stating the facts that make it desirable
30-16 for the petitioner to manage, control, and dispose of the community
30-17 property described or defined in the petition that would otherwise
30-18 be subject to the sole or joint management, control, and
30-19 disposition of the imprisoned or missing spouse.
30-20 (b) The petition may be filed in a court in the county in
30-21 which the petitioner resided at the time the report was made not
30-22 earlier than six months after the date of the notice that a spouse
30-23 is reported to be a prisoner of war or missing on public service.
30-24 If both spouses were nonresidents of this state at the time the
30-25 report was made, the petition shall be filed in a court in a county
31-1 in which any part of the described or defined property is located.
31-2 Sec. 3.303. APPOINTMENT OF ATTORNEY. (a) Except as
31-3 provided by Subsection (b), the court may appoint an attorney in a
31-4 suit filed under this subchapter for the respondent.
31-5 (b) The court shall appoint an attorney in a suit filed
31-6 under this subchapter for a respondent reported to be a prisoner of
31-7 war or missing on public service.
31-8 (c) The court shall allow a reasonable fee for an appointed
31-9 attorney's services as a part of the costs of the suit.
31-10 Sec. 3.304. NOTICE OF HEARING; CITATION. (a) Notice of the
31-11 hearing, accompanied by a copy of the petition, shall be issued and
31-12 served on the attorney representing the respondent, if an attorney
31-13 has been appointed.
31-14 (b) If an attorney has not been appointed for the
31-15 respondent, citation shall be issued and served on the respondent
31-16 as in other civil cases.
31-17 Sec. 3.305. CITATION BY PUBLICATION. (a) If the residence
31-18 of the respondent, other than a respondent reported to be a
31-19 prisoner of war or missing on public service, is unknown, citation
31-20 shall be published in a newspaper of general circulation published
31-21 in the county in which the petition was filed. If that county has
31-22 no newspaper of general circulation, citation shall be published in
31-23 a newspaper of general circulation in an adjacent county or in the
31-24 nearest county in which a newspaper of general circulation is
31-25 published.
32-1 (b) The notice shall be published once a week for two
32-2 consecutive weeks before the hearing, but the first notice may not
32-3 be published after the 20th day before the date set for the
32-4 hearing.
32-5 Sec. 3.306. COURT ORDER FOR MANAGEMENT, CONTROL, AND
32-6 DISPOSITION OF COMMUNITY PROPERTY. (a) After hearing the evidence
32-7 in a suit under this subchapter, the court, on terms the court
32-8 considers just and equitable, shall render an order describing or
32-9 defining the community property at issue that will be subject to
32-10 the management, control, and disposition of each spouse during
32-11 marriage.
32-12 (b) The court may:
32-13 (1) impose any condition and restriction the court
32-14 deems necessary to protect the rights of the respondent;
32-15 (2) require a bond conditioned on the faithful
32-16 administration of the property; and
32-17 (3) require payment to the registry of the court of
32-18 all or a portion of the proceeds of the sale of the property, to be
32-19 disbursed in accordance with the court's further directions.
32-20 Sec. 3.307. CONTINUING JURISDICTION OF COURT; VACATING
32-21 ORIGINAL ORDER. (a) The court has continuing jurisdiction over
32-22 the court's order rendered under this subchapter.
32-23 (b) On the motion of either spouse, the court shall amend or
32-24 vacate the original order after notice and hearing if:
32-25 (1) the incapacitated spouse's capacity is restored;
33-1 (2) the spouse who disappeared reappears;
33-2 (3) the abandonment or permanent separation ends; or
33-3 (4) the spouse who was reported to be a prisoner of
33-4 war or missing on public service returns.
33-5 Sec. 3.308. RECORDING ORDER TO AFFECT REAL PROPERTY. An
33-6 order authorized by this subchapter affecting real property is not
33-7 constructive notice to a good faith purchaser for value or to a
33-8 creditor without actual notice unless the order is recorded in the
33-9 deed records of the county in which the real property is located.
33-10 Sec. 3.309. REMEDIES CUMULATIVE. The remedies provided in
33-11 this subchapter are cumulative of other rights, powers, and
33-12 remedies afforded spouses by law.
33-13 CHAPTER 4. PREMARITAL AND MARITAL PROPERTY AGREEMENTS
33-14 SUBCHAPTER A. UNIFORM PREMARITAL AGREEMENT ACT
33-15 Sec. 4.001. DEFINITIONS. In this subchapter:
33-16 (1) "Premarital agreement" means an agreement between
33-17 prospective spouses made in contemplation of marriage and to be
33-18 effective on marriage.
33-19 (2) "Property" means an interest, present or future,
33-20 legal or equitable, vested or contingent, in real or personal
33-21 property, including income and earnings.
33-22 Sec. 4.002. Formalities. A premarital agreement must be in
33-23 writing and signed by both parties. The agreement is enforceable
33-24 without consideration.
33-25 Sec. 4.003. Content. (a) The parties to a premarital
34-1 agreement may contract with respect to:
34-2 (1) the rights and obligations of each of the parties
34-3 in any of the property of either or both of them whenever and
34-4 wherever acquired or located;
34-5 (2) the right to buy, sell, use, transfer, exchange,
34-6 abandon, lease, consume, expend, assign, create a security interest
34-7 in, mortgage, encumber, dispose of, or otherwise manage and control
34-8 property;
34-9 (3) the disposition of property on separation, marital
34-10 dissolution, death, or the occurrence or nonoccurrence of any other
34-11 event;
34-12 (4) the modification or elimination of spousal
34-13 support;
34-14 (5) the making of a will, trust, or other arrangement
34-15 to carry out the provisions of the agreement;
34-16 (6) the ownership rights in and disposition of the
34-17 death benefit from a life insurance policy;
34-18 (7) the choice of law governing the construction of
34-19 the agreement; and
34-20 (8) any other matter, including their personal rights
34-21 and obligations, not in violation of public policy or a statute
34-22 imposing a criminal penalty.
34-23 (b) The right of a child to support may not be adversely
34-24 affected by a premarital agreement.
34-25 Sec. 4.004. Effect of Marriage. A premarital agreement
35-1 becomes effective on marriage.
35-2 Sec. 4.005. Amendment Or Revocation. After marriage, a
35-3 premarital agreement may be amended or revoked only by a written
35-4 agreement signed by the parties. The amended agreement or the
35-5 revocation is enforceable without consideration.
35-6 Sec. 4.006. Enforcement. (a) A premarital agreement is not
35-7 enforceable if the party against whom enforcement is requested
35-8 proves that:
35-9 (1) the party did not sign the agreement voluntarily;
35-10 or
35-11 (2) the agreement was unconscionable when it was
35-12 signed and, before signing the agreement, that party:
35-13 (A) was not provided a fair and reasonable
35-14 disclosure of the property or financial obligations of the other
35-15 party;
35-16 (B) did not voluntarily and expressly waive, in
35-17 writing, any right to disclosure of the property or financial
35-18 obligations of the other party beyond the disclosure provided; and
35-19 (C) did not have, or reasonably could not have
35-20 had, adequate knowledge of the property or financial obligations of
35-21 the other party.
35-22 (b) An issue of unconscionability of a premarital agreement
35-23 shall be decided by the court as a matter of law.
35-24 (c) The remedies and defenses in this section are the
35-25 exclusive remedies or defenses, including common law remedies or
36-1 defenses.
36-2 Sec. 4.007. Enforcement: Void Marriage. If a marriage is
36-3 determined to be void, an agreement that would otherwise have been
36-4 a premarital agreement is enforceable only to the extent necessary
36-5 to avoid an inequitable result.
36-6 Sec. 4.008. Limitation of Actions. A statute of limitations
36-7 applicable to an action asserting a claim for relief under a
36-8 premarital agreement is tolled during the marriage of the parties
36-9 to the agreement. However, equitable defenses limiting the time
36-10 for enforcement, including laches and estoppel, are available to
36-11 either party.
36-12 Sec. 4.009. Application and Construction. This subchapter
36-13 shall be applied and construed to effect its general purpose to
36-14 make uniform the law with respect to the subject of this subchapter
36-15 among states enacting these provisions.
36-16 Sec. 4.010. Short Title. This subchapter may be cited as
36-17 the Uniform Premarital Agreement Act.
36-18 (Sections 4.011-4.100 reserved for expansion)
36-19 SUBCHAPTER B. MARITAL PROPERTY AGREEMENT
36-20 Sec. 4.101. DEFINITION. In this subchapter, "property" has
36-21 the meaning assigned by Section 4.001.
36-22 Sec. 4.102. Partition or Exchange of Community Property. At
36-23 any time, the spouses may partition or exchange between themselves
36-24 any part of their community property, then existing or to be
36-25 acquired, as the spouses may desire. Property or a property
37-1 interest transferred to a spouse by a partition or exchange
37-2 agreement becomes that spouse's separate property.
37-3 Sec. 4.103. Agreement Between Spouses Concerning Income or
37-4 Property From Separate Property. At any time, the spouses may
37-5 agree that the income or property arising from the separate
37-6 property that is then owned by one of them, or that may thereafter
37-7 be acquired, shall be the separate property of the owner.
37-8 Sec. 4.104. Formalities. A partition or exchange agreement
37-9 must be in writing and signed by both parties.
37-10 Sec. 4.105. Enforcement. (a) A partition or exchange
37-11 agreement is not enforceable if the party against whom enforcement
37-12 is requested proves that:
37-13 (1) the party did not sign the agreement voluntarily;
37-14 or
37-15 (2) the agreement was unconscionable when it was
37-16 signed and, before execution of the agreement, that party:
37-17 (A) was not provided a fair and reasonable
37-18 disclosure of the property or financial obligations of the other
37-19 party;
37-20 (B) did not voluntarily and expressly waive, in
37-21 writing, any right to disclosure of the property or financial
37-22 obligations of the other party beyond the disclosure provided; and
37-23 (C) did not have, or reasonably could not have
37-24 had, adequate knowledge of the property or financial obligations of
37-25 the other party.
38-1 (b) An issue of unconscionability of a partition or exchange
38-2 agreement shall be decided by the court as a matter of law.
38-3 (c) The remedies and defenses in this section are the
38-4 exclusive remedies or defenses, including common law remedies or
38-5 defenses.
38-6 Sec. 4.106. RIGHTS OF CREDITORS AND RECORDATION UNDER
38-7 PARTITION OR EXCHANGE AGREEMENT. (a) A provision of a partition
38-8 or exchange agreement made under this subchapter is void with
38-9 respect to the rights of a preexisting creditor whose rights are
38-10 intended to be defrauded by it.
38-11 (b) A partition or exchange agreement made under this
38-12 subchapter may be recorded in the deed records of the county in
38-13 which a party resides and in the county in which the real property
38-14 affected is located. An agreement made under this subchapter is
38-15 constructive notice to a good faith purchaser for value or a
38-16 creditor without actual notice only if the instrument is
38-17 acknowledged and recorded in the county in which the real property
38-18 is located.
38-19 CHAPTER 5. HOMESTEAD RIGHTS
38-20 SUBCHAPTER A. SALE OF HOMESTEAD; GENERAL RULE
38-21 Sec. 5.001. SALE, CONVEYANCE, OR ENCUMBRANCE OF HOMESTEAD.
38-22 Whether the homestead is the separate property of either spouse or
38-23 community property, neither spouse may sell, convey, or encumber
38-24 the homestead without the joinder of the other spouse except as
38-25 provided in this chapter or by other rules of law.
39-1 Sec. 5.002. SALE OF HOMESTEAD FOR INCAPACITATED SPOUSE. If
39-2 the homestead is the separate property of a spouse and the other
39-3 spouse has been judicially declared incapacitated, the owner may
39-4 sell, convey, or encumber the homestead without the joinder of the
39-5 other spouse.
39-6 (Sections 5.003-5.100 reserved for expansion)
39-7 SUBCHAPTER B. SALE OF HOMESTEAD UNDER UNUSUAL CIRCUMSTANCES
39-8 Sec. 5.101. SALE OF SEPARATE HOMESTEAD UNDER UNUSUAL
39-9 CIRCUMSTANCES. If the homestead is the separate property of a
39-10 spouse, that spouse may file a sworn petition that gives a
39-11 description of the property, states the facts that make it
39-12 desirable for the spouse to sell, convey, or encumber the homestead
39-13 without the joinder of the other spouse, and alleges that the other
39-14 spouse:
39-15 (1) is incapacitated, whether judicially declared
39-16 incapacitated or not;
39-17 (2) has disappeared and that the location of the
39-18 spouse remains unknown to the petitioning spouse;
39-19 (3) has permanently abandoned the homestead and the
39-20 petitioning spouse;
39-21 (4) has permanently abandoned the homestead and the
39-22 spouses are permanently separated; or
39-23 (5) has been reported by an executive department of
39-24 the United States to be a prisoner of war or missing on public
39-25 service of the United States.
40-1 Sec. 5.102. SALE OF COMMUNITY HOMESTEAD UNDER UNUSUAL
40-2 CIRCUMSTANCES. If the homestead is the community property of the
40-3 spouses, one spouse may file a sworn petition that gives a
40-4 description of the property, states the facts that make it
40-5 desirable for the petitioning spouse to sell, convey, or encumber
40-6 the homestead without the joinder of the other spouse, and alleges
40-7 that the other spouse:
40-8 (1) is incapacitated, whether judicially declared
40-9 incapacitated or not;
40-10 (2) has disappeared and that the location of the
40-11 spouse remains unknown to the petitioning spouse;
40-12 (3) has permanently abandoned the homestead and the
40-13 petitioning spouse;
40-14 (4) has permanently abandoned the homestead and the
40-15 spouses are permanently separated; or
40-16 (5) has been reported by an executive department of
40-17 the United States to be a prisoner of war or missing on public
40-18 service of the United States.
40-19 Sec. 5.103. TIME FOR FILING PETITION. The petitioning
40-20 spouse may file the petition in a court of the county in which any
40-21 portion of the property is located not earlier than the 60th day
40-22 after the date of the occurrence of an event described by Sections
40-23 5.101(1)-(4) and 5.102(1)-(4) or not less than six months after the
40-24 date the other spouse has been reported to be a prisoner of war or
40-25 missing on public service.
41-1 Sec. 5.104. APPOINTMENT OF ATTORNEY. (a) Except as
41-2 provided by Subsection (b), the court may appoint an attorney in a
41-3 suit filed under this subchapter for the respondent.
41-4 (b) The court shall appoint an attorney in a suit filed
41-5 under this subchapter for a respondent reported to be a prisoner of
41-6 war or missing on public service.
41-7 (c) The court shall allow a reasonable fee for the appointed
41-8 attorney's services as a part of the costs of the suit.
41-9 Sec. 5.105. CITATION; NOTICE OF HEARING. Citation and
41-10 notice of hearing for a suit filed as provided by this subchapter
41-11 shall be issued and served in the manner provided in Subchapter D,
41-12 Chapter 3.
41-13 Sec. 5.106. COURT ORDER. (a) After notice and hearing, the
41-14 court shall render an order the court deems just and equitable with
41-15 respect to the sale, conveyance, or encumbrance of a separate
41-16 property homestead.
41-17 (b) After hearing the evidence, the court, on terms the
41-18 court deems just and equitable, shall render an order describing or
41-19 defining the community property at issue that will be subject to
41-20 the management, control, and disposition of each spouse during
41-21 marriage.
41-22 (c) The court may:
41-23 (1) impose any conditions and restrictions the court
41-24 deems necessary to protect the rights of the respondent;
41-25 (2) require a bond conditioned on the faithful
42-1 administration of the property; and
42-2 (3) require payment to the registry of the court of
42-3 all or a portion of the proceeds of the sale of the property to be
42-4 disbursed in accordance with the court's further directions.
42-5 Sec. 5.107. SALE OF COMMUNITY HOMESTEAD FOR SPOUSE
42-6 JUDICIALLY DECLARED INCAPACITATED. If the homestead is the
42-7 community property of the spouses and one spouse has been
42-8 judicially declared incapacitated, the competent spouse may sell,
42-9 convey, or encumber the homestead without the joinder of the other
42-10 spouse.
42-11 Sec. 5.108. REMEDIES AND POWERS CUMULATIVE. The remedies
42-12 and the powers of a spouse provided by this subchapter are
42-13 cumulative of the other rights, powers, and remedies afforded the
42-14 spouses by law.
42-15 SUBTITLE C. DISSOLUTION OF MARRIAGE
42-16 CHAPTER 6. SUIT FOR DISSOLUTION OF MARRIAGE
42-17 SUBCHAPTER A. GROUNDS FOR DIVORCE AND DEFENSES
42-18 Sec. 6.001. INSUPPORTABILITY. On the petition of either
42-19 party to a marriage, the court may grant a divorce without regard
42-20 to fault if the marriage has become insupportable because of
42-21 discord or conflict of personalities that destroys the legitimate
42-22 ends of the marital relationship and prevents any reasonable
42-23 expectation of reconciliation.
42-24 Sec. 6.002. CRUELTY. The court may grant a divorce in favor
42-25 of one spouse if the other spouse is guilty of cruel treatment
43-1 toward the complaining spouse of a nature that renders further
43-2 living together insupportable.
43-3 Sec. 6.003. ADULTERY. The court may grant a divorce in
43-4 favor of one spouse if the other spouse has committed adultery.
43-5 Sec. 6.004. CONVICTION OF FELONY. (a) The court may grant
43-6 a divorce in favor of one spouse if during the marriage the other
43-7 spouse:
43-8 (1) has been convicted of a felony;
43-9 (2) has been imprisoned for at least one year in the
43-10 state penitentiary, a federal penitentiary, or the penitentiary of
43-11 another state; and
43-12 (3) has not been pardoned.
43-13 (b) The court may not grant a divorce under this section
43-14 against a spouse who was convicted on the testimony of the other
43-15 spouse.
43-16 Sec. 6.005. ABANDONMENT. The court may grant a divorce in
43-17 favor of one spouse if the other spouse:
43-18 (1) left the complaining spouse with the intention of
43-19 abandonment; and
43-20 (2) remained away for at least one year.
43-21 Sec. 6.006. LIVING APART. The court may grant a divorce in
43-22 favor of either spouse if the spouses have lived apart without
43-23 cohabitation for at least three years.
43-24 Sec. 6.007. CONFINEMENT IN MENTAL HOSPITAL. The court may
43-25 grant a divorce in favor of one spouse if at the time the suit is
44-1 filed:
44-2 (1) the other spouse has been confined in a state
44-3 mental hospital or private mental hospital, as defined in Section
44-4 571.003, Health and Safety Code, in this state or another state for
44-5 at least three years; and
44-6 (2) it appears that the hospitalized spouse's mental
44-7 disorder is of such a degree and nature that adjustment is unlikely
44-8 or that, if adjustment occurs, a relapse is probable.
44-9 Sec. 6.008. DEFENSES. (a) The defenses to a suit for
44-10 divorce of recrimination and adultery are abolished.
44-11 (b) Condonation is a defense to a suit for divorce only if
44-12 the court finds that there is a reasonable expectation of
44-13 reconciliation.
44-14 (Sections 6.009-6.100 reserved for expansion)
44-15 SUBCHAPTER B. GROUNDS FOR ANNULMENT
44-16 Sec. 6.101. ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 14.
44-17 (a) The court may grant an annulment of a licensed or informal
44-18 marriage of a person under 14 years of age unless a court order has
44-19 been obtained as provided in Subchapter B, Chapter 2.
44-20 (b) A petition for annulment under this section may be filed
44-21 by a next friend for the benefit of a person under 14 years of age
44-22 or on the petition of the parent or the judicially designated
44-23 managing conservator or guardian, whether an individual, authorized
44-24 agency, or court, of the person.
44-25 (c) A suit by a parent, managing conservator, or guardian of
45-1 the person may be brought at any time before the person is 14 years
45-2 of age.
45-3 (d) A suit under this section to annul the marriage of a
45-4 person 14 years of age or older that was entered into before the
45-5 person was 14 years of age is barred unless the suit is filed
45-6 within the later of:
45-7 (1) 90 days after the date the petitioner knew or
45-8 should have known of the marriage; or
45-9 (2) 90 days after the date of the 14th birthday of the
45-10 underage party.
45-11 Sec. 6.102. ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 18.
45-12 (a) The court may grant an annulment of a licensed or informal
45-13 marriage of a person 14 years of age or older but under 18 years of
45-14 age that occurred without parental consent or without a court order
45-15 as provided by Subchapters B and E, Chapter 2.
45-16 (b) A petition for annulment under this section may be filed
45-17 by:
45-18 (1) a next friend for the benefit of the underage
45-19 party;
45-20 (2) a parent; or
45-21 (3) the judicially designated managing conservator or
45-22 guardian of the person of the underage party, whether an
45-23 individual, authorized agency, or court.
45-24 (c) A suit filed under this subsection by a next friend is
45-25 barred unless it is filed within 90 days after the date of the
46-1 marriage.
46-2 Sec. 6.103. UNDERAGE ANNULMENT BARRED BY ADULTHOOD. A suit
46-3 to annul a marriage may not be filed under Section 6.101 or 6.102
46-4 by a parent, managing conservator, or guardian of a person after
46-5 the 18th birthday of the person.
46-6 Sec. 6.104. DISCRETIONARY ANNULMENT OF UNDERAGE MARRIAGE.
46-7 (a) An annulment under Section 6.101 or 6.102 of a marriage may be
46-8 granted at the discretion of the court sitting without a jury.
46-9 (b) In exercising its discretion, the court shall consider
46-10 the pertinent facts concerning the welfare of the parties to the
46-11 marriage, including whether the female is pregnant.
46-12 Sec. 6.105. UNDER INFLUENCE OF ALCOHOL OR NARCOTICS. The
46-13 court may grant an annulment of a marriage to a party to the
46-14 marriage if:
46-15 (1) at the time of the marriage the petitioner was
46-16 under the influence of alcoholic beverages or narcotics and as a
46-17 result did not have the capacity to consent to the marriage; and
46-18 (2) the petitioner has not voluntarily cohabited with
46-19 the other party to the marriage since the effects of the alcoholic
46-20 beverages or narcotics ended.
46-21 Sec. 6.106. IMPOTENCY. The court may grant an annulment of
46-22 a marriage to a party to the marriage if:
46-23 (1) either party, for physical or mental reasons, was
46-24 permanently impotent at the time of the marriage;
46-25 (2) the petitioner did not know of the impotency at
47-1 the time of the marriage; and
47-2 (3) the petitioner has not voluntarily cohabited with
47-3 the other party since learning of the impotency.
47-4 Sec. 6.107. FRAUD, DURESS, OR FORCE. The court may grant an
47-5 annulment of a marriage to a party to the marriage if:
47-6 (1) the other party used fraud, duress, or force to
47-7 induce the petitioner to enter into the marriage; and
47-8 (2) the petitioner has not voluntarily cohabited with
47-9 the other party since learning of the fraud or since being released
47-10 from the duress or force.
47-11 Sec. 6.108. MENTAL INCAPACITY. (a) The court may grant an
47-12 annulment of a marriage to a party to the marriage on the suit of
47-13 the party or the party's guardian or next friend, if the court
47-14 finds it to be in the party's best interest to be represented by a
47-15 guardian or next friend, if:
47-16 (1) at the time of the marriage the petitioner did not
47-17 have the mental capacity to consent to marriage or to understand
47-18 the nature of the marriage ceremony because of a mental disease or
47-19 defect; and
47-20 (2) since the marriage ceremony, the petitioner has
47-21 not voluntarily cohabited with the other party during a period when
47-22 the petitioner possessed the mental capacity to recognize the
47-23 marriage relationship.
47-24 (b) The court may grant an annulment of a marriage to a
47-25 party to the marriage if:
48-1 (1) at the time of the marriage the other party did
48-2 not have the mental capacity to consent to marriage or to
48-3 understand the nature of the marriage ceremony because of a mental
48-4 disease or defect;
48-5 (2) at the time of the marriage the petitioner neither
48-6 knew nor reasonably should have known of the mental disease or
48-7 defect; and
48-8 (3) since the date the petitioner discovered or
48-9 reasonably should have discovered the mental disease or defect, the
48-10 petitioner has not voluntarily cohabited with the other party.
48-11 Sec. 6.109. CONCEALED DIVORCE. (a) The court may grant an
48-12 annulment of a marriage to a party to the marriage if:
48-13 (1) the other party was divorced from a third party
48-14 within the 30-day period preceding the date of the marriage
48-15 ceremony;
48-16 (2) at the time of the marriage ceremony the
48-17 petitioner did not know, and a reasonably prudent person would not
48-18 have known, of the divorce; and
48-19 (3) since the petitioner discovered or a reasonably
48-20 prudent person would have discovered the fact of the divorce, the
48-21 petitioner has not voluntarily cohabited with the other party.
48-22 (b) A suit may not be brought under this section after the
48-23 first anniversary of the date of the marriage.
48-24 Sec. 6.110. MARRIAGE LESS THAN 72 HOURS AFTER ISSUANCE OF
48-25 LICENSE. (a) The court may grant an annulment of a marriage to a
49-1 party to the marriage if the marriage ceremony took place in
49-2 violation of Section 2.204 during the 72-hour period immediately
49-3 following the issuance of the marriage license.
49-4 (b) A suit may not be brought under this section after the
49-5 30th day after the date of the marriage.
49-6 Sec. 6.111. DEATH OF PARTY TO VOIDABLE MARRIAGE. A marriage
49-7 subject to annulment may not be challenged in a proceeding
49-8 instituted after the death of either party to the marriage.
49-9 (Sections 6.112-6.200 reserved for expansion)
49-10 SUBCHAPTER C. DECLARING A MARRIAGE VOID
49-11 Sec. 6.201. CONSANGUINITY. A marriage is void if one party
49-12 to the marriage is related to the other as:
49-13 (1) an ancestor or descendant, by blood or adoption;
49-14 (2) a brother or sister, of the whole or half blood or
49-15 by adoption;
49-16 (3) a parent's brother or sister, of the whole or half
49-17 blood or by adoption; or
49-18 (4) a son or daughter of a brother or sister, of the
49-19 whole or half blood or by adoption.
49-20 Sec. 6.202. MARRIAGE DURING EXISTENCE OF PRIOR MARRIAGE.
49-21 (a) A marriage is void if entered into when either party has an
49-22 existing marriage to another person that has not been dissolved by
49-23 legal action or terminated by the death of the other spouse.
49-24 (b) The later marriage that is void under this section
49-25 becomes valid when the prior marriage is dissolved if, after the
50-1 date of the dissolution, the parties have lived together as husband
50-2 and wife and represented themselves to others as being married.
50-3 Sec. 6.203. CERTAIN VOID MARRIAGES VALIDATED. Except for a
50-4 marriage that would have been void under Section 6.201, a marriage
50-5 that was entered into before January 1, 1970, in violation of the
50-6 prohibitions of Article 496, Penal Code of Texas, 1925, is
50-7 validated from the date the marriage commenced if the parties
50-8 continued until January 1, 1970, to live together as husband and
50-9 wife and to represent themselves to others as being married.
50-10 (Sections 6.204-6.300 reserved for expansion)
50-11 SUBCHAPTER D. JURISDICTION, VENUE, AND RESIDENCE QUALIFICATIONS
50-12 Sec. 6.301. GENERAL RESIDENCY RULE FOR DIVORCE SUIT. A suit
50-13 for divorce may not be maintained in this state unless at the time
50-14 the suit is filed either the petitioner or the respondent has been:
50-15 (1) a domiciliary of this state for the preceding
50-16 six-month period; and
50-17 (2) a resident of the county in which the suit is
50-18 filed for the preceding 90-day period.
50-19 Sec. 6.302. SUIT FOR DIVORCE BY NONRESIDENT SPOUSE. If one
50-20 spouse has been a domiciliary of this state for at least the last
50-21 six months, a spouse domiciled in another state or nation may file
50-22 a suit for divorce in the county in which the domiciliary spouse
50-23 resides at the time the petition is filed.
50-24 Sec. 6.303. ABSENCE ON PUBLIC SERVICE. Time spent by a
50-25 Texas domiciliary outside this state or outside the county of
51-1 residence of the domiciliary while in the service of the armed
51-2 forces or other service of the United States or of this state is
51-3 considered residence in this state and in that county.
51-4 Sec. 6.304. ARMED FORCES PERSONNEL NOT PREVIOUSLY RESIDENTS.
51-5 A person not previously a resident of this state who is serving in
51-6 the armed forces of the United States and has been stationed at one
51-7 or more military installations in this state for at least the last
51-8 six months and at a military installation in a county of this state
51-9 for at least the last 90 days is considered to be a Texas
51-10 domiciliary and a resident of that county for those periods for the
51-11 purpose of filing suit for dissolution of a marriage.
51-12 Sec. 6.305. ACQUIRING JURISDICTION OVER NONRESIDENT
51-13 RESPONDENT. (a) If the petitioner in a suit for dissolution of a
51-14 marriage is a resident or a domiciliary of this state at the time
51-15 the suit for dissolution is filed, the court may exercise personal
51-16 jurisdiction over the respondent or over the respondent's personal
51-17 representative although the respondent is not a resident of this
51-18 state if:
51-19 (1) this state is the last marital residence of the
51-20 petitioner and the respondent and the suit is filed before the
51-21 second anniversary of the date on which marital residence ended; or
51-22 (2) there is any basis consistent with the
51-23 constitutions of this state and the United States for the exercise
51-24 of the personal jurisdiction.
51-25 (b) A court acquiring jurisdiction under this section also
52-1 acquires jurisdiction over the respondent in a suit affecting the
52-2 parent-child relationship.
52-3 Sec. 6.306. JURISDICTION TO ANNUL MARRIAGE. (a) A suit for
52-4 annulment of a marriage may be maintained in this state only if the
52-5 parties were married in this state or if either party is domiciled
52-6 in this state.
52-7 (b) A suit for annulment is a suit in rem, affecting the
52-8 status of the parties to the marriage.
52-9 Sec. 6.307. JURISDICTION TO DECLARE MARRIAGE VOID.
52-10 (a) Either party to a marriage made void by this chapter may sue
52-11 to have the marriage declared void, or the court may declare the
52-12 marriage void in a collateral proceeding.
52-13 (b) The court may declare a marriage void only if:
52-14 (1) the purported marriage was contracted in this
52-15 state; or
52-16 (2) either party is domiciled in this state.
52-17 (c) A suit to have a marriage declared void is a suit in
52-18 rem, affecting the status of the parties to the purported marriage.
52-19 Sec. 6.308. EXERCISING PARTIAL JURISDICTION. (a) A court
52-20 in which a suit for dissolution of a marriage is filed may exercise
52-21 its jurisdiction over those portions of the suit for which it has
52-22 authority.
52-23 (b) The court's authority to resolve the issues in
52-24 controversy between the parties may be restricted because the court
52-25 lacks:
53-1 (1) the required personal jurisdiction over a
53-2 nonresident party in a suit for dissolution of the marriage;
53-3 (2) the required jurisdiction under Chapter 152; or
53-4 (3) the required jurisdiction under Chapter 159.
53-5 (Sections 6.309-6.400 reserved for expansion)
53-6 SUBCHAPTER E. FILING SUIT
53-7 Sec. 6.401. CAPTION. (a) Pleadings in a suit for divorce
53-8 or annulment shall be styled "In the Matter of the Marriage
53-9 of ________ and ________."
53-10 (b) Pleadings in a suit to declare a marriage void shall be
53-11 styled "A Suit To Declare Void the Marriage
53-12 of __________ and __________."
53-13 Sec. 6.402. PLEADINGS. (a) A petition in a suit for
53-14 dissolution of a marriage is sufficient without the necessity of
53-15 specifying the underlying evidentiary facts if the petition alleges
53-16 the grounds relied on substantially in the language of the statute.
53-17 (b) Allegations of grounds for relief, matters of defense,
53-18 or facts relied on for a temporary order that are stated in short
53-19 and plain terms are not subject to special exceptions because of
53-20 form or sufficiency.
53-21 (c) The court shall strike an allegation of evidentiary fact
53-22 from the pleadings on the motion of a party or on the court's own
53-23 motion.
53-24 Sec. 6.403. ANSWER. The respondent in a suit for
53-25 dissolution of a marriage is not required to answer on oath or
54-1 affirmation.
54-2 Sec. 6.404. STATEMENT ON ALTERNATE DISPUTE RESOLUTION.
54-3 (a) A party to a proceeding under this title shall include in the
54-4 first pleading filed by the party in the proceeding the following
54-5 statement:
54-6 "I AM AWARE THAT IT IS THE POLICY OF THE STATE OF TEXAS TO
54-7 PROMOTE THE AMICABLE AND NONJUDICIAL SETTLEMENT OF DISPUTES
54-8 INVOLVING CHILDREN AND FAMILIES. I AM AWARE OF ALTERNATIVE DISPUTE
54-9 RESOLUTION METHODS, INCLUDING MEDIATION. WHILE I RECOGNIZE THAT
54-10 ALTERNATIVE DISPUTE RESOLUTION IS AN ALTERNATIVE TO AND NOT A
54-11 SUBSTITUTE FOR A TRIAL AND THAT THIS CASE MAY BE TRIED IF IT IS NOT
54-12 SETTLED, I REPRESENT TO THE COURT THAT I WILL ATTEMPT IN GOOD FAITH
54-13 TO RESOLVE CONTESTED ISSUES IN THIS CASE BY ALTERNATIVE DISPUTE
54-14 RESOLUTION WITHOUT THE NECESSITY OF COURT INTERVENTION."
54-15 (b) The statement prescribed by Subsection (a) must be
54-16 printed in boldfaced type or capital letters and signed by the
54-17 party.
54-18 (c) The statement prescribed by Subsection (a) is not
54-19 required for:
54-20 (1) a pleading in which citation on all respondents
54-21 entitled to service of citation is requested, issued, and given by
54-22 publication;
54-23 (2) a motion or pleading that seeks a protective order
54-24 as provided by Chapter 71; or
54-25 (3) a special appearance under Rule 120a, Texas Rules
55-1 of Civil Procedure.
55-2 Sec. 6.405. PROTECTIVE ORDER. (a) The petition in a suit
55-3 for dissolution of a marriage must state whether a protective order
55-4 under Chapter 71 is in effect or if an application for a protective
55-5 order is pending with regard to the parties to the suit.
55-6 (b) The petitioner shall attach to the petition a copy of
55-7 each protective order issued under Chapter 71 in which one of the
55-8 parties to the suit was the applicant and the other party was the
55-9 respondent without regard to the date of the order. If a copy of
55-10 the protective order is not available at the time of filing, the
55-11 petition must state that a copy of the order will be filed with the
55-12 court before any hearing.
55-13 Sec. 6.406. MANDATORY JOINDER OF SUIT AFFECTING PARENT-CHILD
55-14 RELATIONSHIP. (a) The petition in a suit for dissolution of a
55-15 marriage shall state whether there are children born or adopted of
55-16 the marriage who are under 18 years of age or who are otherwise
55-17 entitled to support as provided by Chapter 154.
55-18 (b) If the parties are parents of a child, as defined by
55-19 Section 101.003, and the child is not under the continuing
55-20 jurisdiction of another court as provided by Chapter 155, the suit
55-21 for dissolution of a marriage must include a suit affecting the
55-22 parent-child relationship under Title 5.
55-23 Sec. 6.407. TRANSFER OF SUIT AFFECTING PARENT-CHILD
55-24 RELATIONSHIP TO DIVORCE COURT. (a) If a suit affecting the
55-25 parent-child relationship is pending at the time the suit for
56-1 dissolution of a marriage is filed, the suit affecting the
56-2 parent-child relationship shall be transferred as provided by
56-3 Section 103.002 to the court in which the suit for dissolution is
56-4 filed.
56-5 (b) If the parties are parents of a child, as defined by
56-6 Section 101.003, and the child is under the continuing jurisdiction
56-7 of another court under Chapter 155, either party to the suit for
56-8 dissolution of a marriage may move that court for transfer of the
56-9 suit affecting the parent-child relationship to the court having
56-10 jurisdiction of the suit for dissolution. The court with
56-11 continuing jurisdiction shall transfer the proceeding as provided
56-12 by Chapter 155. On the transfer of the proceedings, the court with
56-13 jurisdiction of the suit for dissolution of a marriage shall
56-14 consolidate the two causes of action.
56-15 (c) After transfer of a suit affecting the parent-child
56-16 relationship as provided in Chapter 155, the court with
56-17 jurisdiction of the suit for dissolution of a marriage has
56-18 jurisdiction to render an order in the suit affecting the
56-19 parent-child relationship as provided by Title 5.
56-20 Sec. 6.408. SERVICE OF CITATION. Citation on the filing of
56-21 an original petition in a suit for dissolution of a marriage shall
56-22 be issued and served as in other civil cases. Citation may also be
56-23 served on any other person who has or who may assert an interest in
56-24 the suit for dissolution of the marriage.
56-25 Sec. 6.409. CITATION BY PUBLICATION. (a) Citation in a
57-1 suit for dissolution of a marriage may be by publication as in
57-2 other civil cases, except that notice shall be published one time
57-3 only.
57-4 (b) The notice shall be sufficient if given in substantially
57-5 the following form:
57-6 "STATE OF TEXAS
57-7 To (name of person to be served with citation), and to all whom it
57-8 may concern (if the name of any person to be served with citation
57-9 is unknown), Respondent(s),
57-10 "You have been sued. You may employ an attorney. If you or
57-11 your attorney do not file a written answer with the clerk who
57-12 issued this citation by 10 a.m. on the Monday next following the
57-13 expiration of 20 days after you were served this citation and
57-14 petition, a default judgment may be taken against you. The
57-15 petition of _______________, Petitioner, was filed in the Court of
57-16 _______________ County, Texas, on the _____ day of _______________,
57-17 against _______________, Respondent(s), numbered ______, and
57-18 entitled 'In the Matter of Marriage of _______________ and
57-19 _______________. The suit requests _______________ (statement of
57-20 relief sought).'
57-21 "The Court has authority in this suit to enter any judgment
57-22 or decree dissolving the marriage and providing for the division of
57-23 property that will be binding on you.
57-24 "Issued and given under my hand and seal of said Court
58-1 at __________, Texas, this the _____ day of _______________, _____.
58-2 "...............................
58-3 Clerk of the _________ Court of
58-4 _________________ County, Texas
58-5 By _______, Deputy."
58-6 (c) The form authorized in this section and the form
58-7 authorized by Section 102.010 may be combined in appropriate
58-8 situations.
58-9 (d) If the citation is for a suit in which a parent-child
58-10 relationship does not exist, service by publication may be
58-11 completed by posting the citation at the courthouse door for seven
58-12 days in the county in which the suit is filed.
58-13 (e) If the petitioner or the petitioner's attorney of record
58-14 makes an oath that no child presently under 18 years of age was
58-15 born or adopted by the spouses and that no appreciable amount of
58-16 property was accumulated by the spouses during the marriage, the
58-17 court may dispense with the appointment of an attorney ad litem.
58-18 In a case in which citation was by publication, a statement of the
58-19 evidence, approved and signed by the judge, shall be filed with the
58-20 papers of the suit as a part of the record.
58-21 (Sections 6.410-6.500 reserved for expansion)
58-22 SUBCHAPTER F. TEMPORARY ORDERS
58-23 Sec. 6.501. TEMPORARY RESTRAINING ORDER. (a) After the
58-24 filing of a suit for dissolution of a marriage, on the motion of a
58-25 party or on the court's own motion, the court may grant a temporary
59-1 restraining order without notice to the adverse party for the
59-2 preservation of the property and for the protection of the parties
59-3 as necessary, including an order prohibiting one or both parties
59-4 from:
59-5 (1) intentionally communicating by telephone or in
59-6 writing with the other party by use of vulgar, profane, obscene, or
59-7 indecent language or in a coarse or offensive manner, with intent
59-8 to annoy or alarm the other;
59-9 (2) threatening the other, by telephone or in writing,
59-10 to take unlawful action against any person, intending by this
59-11 action to annoy or alarm the other;
59-12 (3) placing a telephone call, anonymously, at an
59-13 unreasonable hour, in an offensive and repetitious manner, or
59-14 without a legitimate purpose of communication with the intent to
59-15 annoy or alarm the other;
59-16 (4) intentionally, knowingly, or recklessly causing
59-17 bodily injury to the other or to a child of either party;
59-18 (5) threatening the other or a child of either party
59-19 with imminent bodily injury;
59-20 (6) intentionally, knowingly, or recklessly
59-21 destroying, removing, concealing, encumbering, transferring, or
59-22 otherwise harming or reducing the value of the property of the
59-23 parties or either party with intent to obstruct the authority of
59-24 the court to order a division of the estate of the parties in a
59-25 manner that the court deems just and right, having due regard for
60-1 the rights of each party and any children of the marriage;
60-2 (7) intentionally falsifying a writing or record
60-3 relating to the property of either party;
60-4 (8) intentionally misrepresenting or refusing to
60-5 disclose to the other party or to the court, on proper request, the
60-6 existence, amount, or location of any property of the parties or
60-7 either party;
60-8 (9) intentionally or knowingly damaging or destroying
60-9 the tangible property of the parties or either party; or
60-10 (10) intentionally or knowingly tampering with the
60-11 tangible property of the parties or either party and causing
60-12 pecuniary loss or substantial inconvenience to the other.
60-13 (b) A temporary restraining order under this subchapter may
60-14 not include a provision:
60-15 (1) the subject of which is a requirement,
60-16 appointment, award, or other order listed in Section 886A, Texas
60-17 Probate Code; or
60-18 (2) that:
60-19 (A) excludes a spouse from occupancy of the
60-20 residence where that spouse is living except as provided in a
60-21 protective order made in accordance with Title 4;
60-22 (B) prohibits a party from spending funds for
60-23 reasonable and necessary living expenses; or
60-24 (C) prohibits a party from engaging in acts
60-25 reasonable and necessary to conduct that party's usual business and
61-1 occupation.
61-2 Sec. 6.502. TEMPORARY INJUNCTION AND OTHER TEMPORARY ORDERS.
61-3 While a suit for dissolution of a marriage is pending and on the
61-4 motion of a party or on the court's own motion after notice and
61-5 hearing, the court may render an appropriate order, including the
61-6 granting of a temporary injunction for the preservation of the
61-7 property and protection of the parties as deemed necessary and
61-8 equitable and including an order directed to one or both parties:
61-9 (1) requiring a sworn inventory and appraisement of
61-10 the real and personal property owned or claimed by the parties and
61-11 specifying the form, manner, and substance of the inventory and
61-12 appraisal and list of debts and liabilities;
61-13 (2) requiring payments to be made for the support of
61-14 either spouse;
61-15 (3) requiring the production of books, papers,
61-16 documents, and tangible things by a party;
61-17 (4) ordering payment of reasonable attorney's fees and
61-18 expenses;
61-19 (5) appointing a receiver for the preservation and
61-20 protection of the property of the parties;
61-21 (6) awarding one spouse exclusive occupancy of the
61-22 residence during the pendency of the case;
61-23 (7) prohibiting the parties, or either party, from
61-24 spending funds beyond an amount the court determines to be for
61-25 reasonable and necessary living expenses;
62-1 (8) awarding one spouse exclusive control of a party's
62-2 usual business or occupation; or
62-3 (9) prohibiting an act described by Section 6.501(a).
62-4 Sec. 6.503. AFFIDAVIT, VERIFIED PLEADING, AND BOND NOT
62-5 REQUIRED. (a) A temporary restraining order or temporary
62-6 injunction under this subchapter:
62-7 (1) may be granted without an affidavit or a verified
62-8 pleading stating specific facts showing that immediate and
62-9 irreparable injury, loss, or damage will result before notice can
62-10 be served and a hearing can be held; and
62-11 (2) need not:
62-12 (A) define the injury or state why it is
62-13 irreparable;
62-14 (B) state why the order was granted without
62-15 notice; or
62-16 (C) include an order setting the suit for trial
62-17 on the merits with respect to the ultimate relief sought.
62-18 (b) In a suit for dissolution of a marriage, the court may
62-19 dispense with the issuance of a bond between the spouses in
62-20 connection with temporary orders for the protection of the parties
62-21 and their property.
62-22 Sec. 6.504. PROTECTIVE ORDERS. On the motion of a party to
62-23 a suit for dissolution of a marriage, the court may render a
62-24 protective order as provided by Chapter 71.
62-25 Sec. 6.505. COUNSELING. (a) While a divorce suit is
63-1 pending, the court may direct the parties to counsel with a person
63-2 named by the court.
63-3 (b) The person named by the court to counsel the parties
63-4 shall submit a written report to the court and to the parties
63-5 before the final hearing. In the report, the counselor shall give
63-6 only an opinion as to whether there exists a reasonable expectation
63-7 of reconciliation of the parties and, if so, whether further
63-8 counseling would be beneficial. The sole purpose of the report is
63-9 to aid the court in determining whether the suit for divorce should
63-10 be continued pending further counseling.
63-11 (c) A copy of the report shall be furnished to each party.
63-12 (d) If the court believes that there is a reasonable
63-13 expectation of the parties' reconciliation, the court may by
63-14 written order continue the proceedings and direct the parties to a
63-15 person named by the court for further counseling for a period fixed
63-16 by the court not to exceed 60 days, subject to any terms,
63-17 conditions, and limitations the court considers desirable. In
63-18 ordering counseling, the court shall consider the circumstances of
63-19 the parties, including the needs of the parties' family and the
63-20 availability of counseling services. At the expiration of the
63-21 period specified by the court, the counselor to whom the parties
63-22 were directed shall report to the court whether the parties have
63-23 complied with the court's order. Thereafter, the court shall
63-24 proceed as in a divorce suit generally.
63-25 Sec. 6.506. CONTEMPT. The violation of a temporary
64-1 restraining order, temporary injunction, or other temporary order
64-2 issued under this subchapter is punishable as contempt.
64-3 Sec. 6.507. INTERLOCUTORY APPEAL. An order under this
64-4 subchapter, except an order appointing a receiver, is not subject
64-5 to interlocutory appeal.
64-6 (Sections 6.508-6.600 reserved for expansion)
64-7 SUBCHAPTER G. ALTERNATIVE DISPUTE RESOLUTION
64-8 Sec. 6.601. ARBITRATION PROCEDURES. (a) On written
64-9 agreement of the parties, the court may refer a suit for
64-10 dissolution of a marriage to arbitration. The agreement must state
64-11 whether the arbitration is binding or nonbinding.
64-12 (b) If the parties agree to binding arbitration, the court
64-13 shall render an order reflecting the arbitrator's award.
64-14 Sec. 6.602. MEDIATION PROCEDURES. (a) On the written
64-15 agreement of the parties or on the court's own motion, the court
64-16 may refer a suit for dissolution of a marriage to mediation.
64-17 (b) A mediated settlement agreement is binding on the
64-18 parties if the agreement:
64-19 (1) provides in a separate paragraph that the
64-20 agreement is not subject to revocation;
64-21 (2) is signed by each party to the agreement; and
64-22 (3) is signed by the party's attorney, if any, who is
64-23 present at the time the agreement is signed.
64-24 (c) If a mediated settlement agreement meets the
64-25 requirements of this section, a party is entitled to judgment on
65-1 the mediated settlement agreement notwithstanding Rule 11, Texas
65-2 Rules of Civil Procedure, or another rule of law.
65-3 (Sections 6.603-6.700 reserved for expansion)
65-4 SUBCHAPTER H. TRIAL AND APPEAL
65-5 Sec. 6.701. FAILURE TO ANSWER. In a suit for divorce, the
65-6 petition may not be taken as confessed if the respondent does not
65-7 file an answer.
65-8 Sec. 6.702. WAITING PERIOD. (a) The court may not grant a
65-9 divorce before the 60th day after the date the suit was filed. A
65-10 decree rendered in violation of this subsection is not subject to
65-11 collateral attack.
65-12 (b) A waiting period is not required before a court may
65-13 grant an annulment or declare a marriage void other than as
65-14 required in civil cases generally.
65-15 Sec. 6.703. JURY. In a suit for dissolution of a marriage,
65-16 either party may demand a jury trial unless the action is a suit to
65-17 annul an underage marriage under Section 6.101 or 6.102.
65-18 Sec. 6.704. TESTIMONY OF HUSBAND OR WIFE. (a) In a suit
65-19 for dissolution of a marriage, the husband and wife are competent
65-20 witnesses for and against each other. A spouse may not be
65-21 compelled to testify as to a matter that will incriminate the
65-22 spouse.
65-23 (b) If the husband or wife testifies, the court or jury
65-24 trying the case shall determine the credibility of the witness and
65-25 the weight to be given the witness's testimony.
66-1 Sec. 6.705. TESTIMONY BY MARRIAGE COUNSELOR. (a) The
66-2 report by the person named by the court to counsel the parties to a
66-3 suit for divorce may not be admitted as evidence in the suit.
66-4 (b) The person named by the court to counsel the parties is
66-5 not competent to testify in any suit involving the parties or their
66-6 children.
66-7 (c) The files, records, and other work products of the
66-8 counselor are privileged and confidential for all purposes and may
66-9 not be admitted as evidence in any suit involving the parties or
66-10 their children.
66-11 Sec. 6.706. CHANGE OF NAME. (a) In a decree of divorce or
66-12 annulment, the court shall change the name of a party specifically
66-13 requesting the change to a name previously used by the party unless
66-14 the court states in the decree a reason for denying the change of
66-15 name.
66-16 (b) The court may not deny a change of name solely to keep
66-17 the last name of family members the same.
66-18 (c) A change of name does not release a person from
66-19 liability incurred by the person under a previous name or defeat a
66-20 right the person held under a previous name.
66-21 (d) A person whose name is changed under this section may
66-22 apply for a change of name certificate from the clerk of the court
66-23 as provided by Section 45.106.
66-24 Sec. 6.707. TRANSFERS AND DEBTS PENDING DECREE. (a) A
66-25 transfer of real or personal community property or a debt incurred
67-1 by a spouse while a suit for divorce or annulment is pending that
67-2 subjects the other spouse or the community property to liability is
67-3 void with respect to the other spouse if the transfer was made or
67-4 the debt incurred with the intent to injure the rights of the other
67-5 spouse.
67-6 (b) A transfer or debt is not void if the person dealing
67-7 with the transferor or debtor spouse did not have notice of the
67-8 intent to injure the rights of the other spouse.
67-9 (c) The spouse seeking to void a transfer or debt incurred
67-10 while a suit for divorce or annulment is pending has the burden of
67-11 proving that the person dealing with the transferor or debtor
67-12 spouse had notice of the intent to injure the rights of the spouse
67-13 seeking to void the transaction.
67-14 Sec. 6.708. COSTS. (a) In a suit for dissolution of a
67-15 marriage, the court as it considers reasonable may award costs to a
67-16 party. Costs may not be adjudged against a party against whom a
67-17 divorce is granted for confinement in a mental hospital under
67-18 Section 6.007.
67-19 (b) The expenses of counseling may be taxed as costs against
67-20 either or both parties.
67-21 Sec. 6.709. TEMPORARY ORDERS DURING APPEAL. (a) Not later
67-22 than the 30th day after the date an appeal is perfected, on the
67-23 motion of a party or on the court's own motion, after notice and
67-24 hearing, the trial court may render a temporary order necessary for
67-25 the preservation of the property and for the protection of the
68-1 parties during the appeal, including an order to:
68-2 (1) require the support of either spouse;
68-3 (2) require the payment of reasonable attorney's fees
68-4 and expenses;
68-5 (3) appoint a receiver for the preservation and
68-6 protection of the property of the parties; or
68-7 (4) award one spouse exclusive occupancy of the
68-8 parties' residence pending the appeal.
68-9 (b) The trial court retains jurisdiction to enforce a
68-10 temporary order under this section unless the appellate court, on a
68-11 proper showing, supersedes the trial court's order.
68-12 (Sections 6.710-6.800 reserved for expansion)
68-13 SUBCHAPTER I. REMARRIAGE
68-14 Sec. 6.801. REMARRIAGE. (a) Except as otherwise provided
68-15 by this subchapter, neither party to a divorce may marry a third
68-16 party before the 31st day after the date the divorce is decreed.
68-17 (b) The former spouses may marry each other at any time.
68-18 Sec. 6.802. WAIVER OF PROHIBITION AGAINST REMARRIAGE. For
68-19 good cause shown the court may waive the prohibition against
68-20 remarriage provided by this subchapter as to either or both spouses
68-21 if a record of the proceedings is made and preserved or if findings
68-22 of fact and conclusions of law are filed by the court.
68-23 CHAPTER 7. AWARD OF MARITAL PROPERTY
68-24 Sec. 7.001. GENERAL RULE OF PROPERTY DIVISION. In a decree
68-25 of divorce or annulment, the court shall order a division of the
69-1 estate of the parties in a manner that the court deems just and
69-2 right, having due regard for the rights of each party and any
69-3 children of the marriage.
69-4 Sec. 7.002. DIVISION OF PROPERTY UNDER SPECIAL
69-5 CIRCUMSTANCES. In addition to the division of the estate of the
69-6 parties required by Section 7.001, in a decree of divorce or
69-7 annulment the court shall order a division of the following real
69-8 and personal property, wherever situated, in a manner that the
69-9 court deems just and right, having due regard for the rights of
69-10 each party and any children of the marriage:
69-11 (1) property that was acquired by either spouse while
69-12 domiciled in another state and that would have been community
69-13 property if the spouse who acquired the property had been domiciled
69-14 in this state at the time of the acquisition; or
69-15 (2) property that was acquired by either spouse in
69-16 exchange for real or personal property and that would have been
69-17 community property if the spouse who acquired the property so
69-18 exchanged had been domiciled in this state at the time of its
69-19 acquisition.
69-20 Sec. 7.003. DISPOSITION OF RETIREMENT AND EMPLOYMENT
69-21 BENEFITS AND OTHER PLANS. In a decree of divorce or annulment, the
69-22 court shall determine the rights of both spouses in a pension,
69-23 retirement plan, annuity, individual retirement account, employee
69-24 stock option plan, stock option, or other form of savings, bonus,
69-25 profit-sharing, or other employer plan or financial plan of an
70-1 employee or a participant, regardless of whether the person is
70-2 self-employed, in the nature of compensation or savings.
70-3 Sec. 7.004. DISPOSITION OF RIGHTS IN INSURANCE. In a decree
70-4 of divorce or annulment, the court shall specifically divide or
70-5 award the rights of each spouse in an insurance policy.
70-6 Sec. 7.005. INSURANCE COVERAGE NOT SPECIFICALLY AWARDED.
70-7 (a) If in a decree of divorce or annulment the court does not
70-8 specifically award all of the rights of the spouses in an insurance
70-9 policy other than life insurance in effect at the time the decree
70-10 is rendered, the policy remains in effect until the policy expires
70-11 according to the policy's own terms.
70-12 (b) The proceeds of a valid claim under the policy are
70-13 payable as follows:
70-14 (1) if the interest in the property insured was
70-15 awarded solely to one former spouse by the decree, to that former
70-16 spouse;
70-17 (2) if an interest in the property insured was awarded
70-18 to each former spouse, to those former spouses in proportion to the
70-19 interests awarded; or
70-20 (3) if the insurance coverage is directly related to
70-21 the person of one of the former spouses, to that former spouse.
70-22 (c) The failure of either former spouse to change the
70-23 endorsement on the policy to reflect the distribution of proceeds
70-24 established by this section does not relieve the insurer of
70-25 liability to pay the proceeds or any other obligation on the
71-1 policy.
71-2 (d) This section does not affect the right of a former
71-3 spouse to assert an ownership interest in an undivided life
71-4 insurance policy, as provided by Subchapter D, Chapter 9.
71-5 Sec. 7.006. AGREEMENT INCIDENT TO DIVORCE OR ANNULMENT.
71-6 (a) To promote amicable settlement of disputes in a suit for
71-7 divorce or annulment, the spouses may enter into a written
71-8 agreement concerning the division of the property and the
71-9 liabilities of the spouses and maintenance of either spouse. The
71-10 agreement may be revised or repudiated before rendition of the
71-11 divorce or annulment unless the agreement is binding under another
71-12 rule of law.
71-13 (b) If the court finds that the terms of the written
71-14 agreement in a divorce or annulment are just and right, those terms
71-15 are binding on the court. If the court approves the agreement, the
71-16 court may set forth the agreement in full or incorporate the
71-17 agreement by reference in the final decree.
71-18 (c) If the court finds that the terms of the written
71-19 agreement in a divorce or annulment are not just and right, the
71-20 court may request the spouses to submit a revised agreement or may
71-21 set the case for a contested hearing.
71-22 CHAPTER 8. MAINTENANCE
71-23 Sec. 8.001. DEFINITION. In this chapter, "maintenance"
71-24 means an award in a suit for dissolution of a marriage of periodic
71-25 payments from the future income of one spouse for the support of
72-1 the other spouse.
72-2 Sec. 8.002. Eligibility for Maintenance. In a suit for
72-3 dissolution of a marriage or in a proceeding for maintenance in a
72-4 court with personal jurisdiction over both former spouses following
72-5 the dissolution of their marriage by a court that lacked personal
72-6 jurisdiction over an absent spouse, the court may order maintenance
72-7 for either spouse only if:
72-8 (1) the spouse from whom maintenance is requested was
72-9 convicted of or received deferred adjudication for a criminal
72-10 offense that also constitutes an act of family violence under
72-11 Chapter 71 and the offense occurred:
72-12 (A) within two years before the date on which a
72-13 suit for dissolution of the marriage is filed; or
72-14 (B) while the suit is pending; or
72-15 (2) the duration of the marriage was 10 years or
72-16 longer, the spouse seeking maintenance lacks sufficient property,
72-17 including property distributed to the spouse under this code, to
72-18 provide for the spouse's minimum reasonable needs, as limited by
72-19 Section 8.005, and the spouse seeking maintenance:
72-20 (A) is unable to support himself or herself
72-21 through appropriate employment because of an incapacitating
72-22 physical or mental disability;
72-23 (B) is the custodian of a child who requires
72-24 substantial care and personal supervision because a physical or
72-25 mental disability makes it necessary, taking into consideration the
73-1 needs of the child, that the spouse not be employed outside the
73-2 home; or
73-3 (C) clearly lacks earning ability in the labor
73-4 market adequate to provide support for the spouse's minimum
73-5 reasonable needs, as limited by Section 8.005.
73-6 Sec. 8.003. Factors in Determining Maintenance. A court
73-7 that determines that a spouse is eligible to receive maintenance
73-8 under this chapter shall determine the nature, amount, duration,
73-9 and manner of periodic payments by considering all relevant
73-10 factors, including:
73-11 (1) the financial resources of the spouse seeking
73-12 maintenance, including the community and separate property and
73-13 liabilities apportioned to that spouse in the dissolution
73-14 proceeding, and that spouse's ability to meet the spouse's needs
73-15 independently;
73-16 (2) the education and employment skills of the
73-17 spouses, the time necessary to acquire sufficient education or
73-18 training to enable the spouse seeking maintenance to find
73-19 appropriate employment, the availability of that education or
73-20 training, and the feasibility of that education or training;
73-21 (3) the duration of the marriage;
73-22 (4) the age, employment history, earning ability, and
73-23 physical and emotional condition of the spouse seeking maintenance;
73-24 (5) the ability of the spouse from whom maintenance is
73-25 requested to meet that spouse's personal needs and to provide
74-1 periodic child support payments, if applicable, while meeting the
74-2 personal needs of the spouse seeking maintenance;
74-3 (6) acts by either spouse resulting in excessive or
74-4 abnormal expenditures or destruction, concealment, or fraudulent
74-5 disposition of community property, joint tenancy, or other property
74-6 held in common;
74-7 (7) the comparative financial resources of the
74-8 spouses, including medical, retirement, insurance, or other
74-9 benefits, and the separate property of each spouse;
74-10 (8) the contribution by one spouse to the education,
74-11 training, or increased earning power of the other spouse;
74-12 (9) the property brought to the marriage by either
74-13 spouse;
74-14 (10) the contribution of a spouse as homemaker;
74-15 (11) marital misconduct of the spouse seeking
74-16 maintenance; and
74-17 (12) the efforts of the spouse seeking maintenance to
74-18 pursue available employment counseling as provided by Chapter 304,
74-19 Labor Code.
74-20 Sec. 8.004. Presumption. (a) Except as provided by
74-21 Subsection (b), it is presumed that maintenance is not warranted
74-22 unless the spouse seeking maintenance has exercised diligence in:
74-23 (1) seeking suitable employment; or
74-24 (2) developing the necessary skills to become
74-25 self-supporting during a period of separation and during the time
75-1 the suit for dissolution of the marriage is pending.
75-2 (b) This section does not apply to a spouse who is not able
75-3 to satisfy the presumption in Subsection (a) because of an
75-4 incapacitating physical or mental disability.
75-5 Sec. 8.005. Duration of Maintenance Order. (a) Except as
75-6 provided by Subsection (b), a court:
75-7 (1) may not order maintenance that remains in effect
75-8 for more than three years after the date of the order; and
75-9 (2) shall limit the duration of a maintenance order to
75-10 the shortest reasonable period that allows the spouse seeking
75-11 maintenance to meet the spouse's minimum reasonable needs by
75-12 obtaining appropriate employment or developing an appropriate
75-13 skill, unless the ability of the spouse to provide for the spouse's
75-14 minimum reasonable needs through employment is substantially or
75-15 totally diminished because of:
75-16 (A) physical or mental disability;
75-17 (B) duties as the custodian of an infant or
75-18 young child; or
75-19 (C) another compelling impediment to gainful
75-20 employment.
75-21 (b) If a spouse seeking maintenance is unable to support
75-22 himself or herself through appropriate employment because of an
75-23 incapacitating physical or mental disability, the court may order
75-24 maintenance for an indefinite period for as long as the disability
75-25 continues. The court may order periodic review of its order, on
76-1 the request of either party or on its own motion, to determine
76-2 whether the disability is continuing. The continuation of spousal
76-3 maintenance under these circumstances is subject to a motion to
76-4 modify as provided by Section 8.008.
76-5 Sec. 8.006. Amount of Maintenance. (a) A court may not
76-6 order maintenance that requires a spouse to pay monthly more than
76-7 the lesser of:
76-8 (1) $2,500; or
76-9 (2) 20 percent of the spouse's average monthly gross
76-10 income.
76-11 (b) The court shall set the amount that a spouse is required
76-12 to pay in a maintenance order to provide for the minimum reasonable
76-13 needs of the spouse receiving the maintenance under the order,
76-14 considering employment or property received in the dissolution of
76-15 the marriage or otherwise owned by the spouse receiving the
76-16 maintenance that contributes to the minimum reasonable needs of
76-17 that spouse.
76-18 (c) Department of Veterans Affairs service-connected
76-19 disability compensation, social security benefits and disability
76-20 benefits, and workers' compensation benefits are excluded from
76-21 maintenance.
76-22 Sec. 8.007. Termination. (a) The obligation to pay future
76-23 maintenance terminates on the death of either party or on the
76-24 remarriage of the party receiving maintenance.
76-25 (b) After a hearing, the court shall terminate the
77-1 maintenance order if the party receiving maintenance cohabits with
77-2 another person in a permanent place of abode on a continuing,
77-3 conjugal basis.
77-4 Sec. 8.008. Modification of Maintenance Order. (a) The
77-5 amount of maintenance specified in a court order or the portion of
77-6 a decree that provides for the support of a former spouse may be
77-7 reduced by the filing of a motion in the court that originally
77-8 rendered the order. A party affected by the order or the portion
77-9 of the decree to be modified may file the motion.
77-10 (b) Notice of a motion to modify maintenance and the
77-11 response, if any, are governed by the Texas Rules of Civil
77-12 Procedure applicable to the filing of an original lawsuit. Notice
77-13 must be given by service of citation, and a response must be in the
77-14 form of an answer due on or before 10 a.m. of the first Monday
77-15 after 20 days after the date of service. A court shall set a
77-16 hearing on the motion in the manner provided by Rule 245, Texas
77-17 Rules of Civil Procedure.
77-18 (c) After a hearing, the court may modify an original or
77-19 modified order or portion of a decree providing for maintenance on
77-20 a proper showing of a material and substantial change in
77-21 circumstances of either party. The court shall apply the
77-22 modification only to payment accruing after the filing of the
77-23 motion to modify.
77-24 (d) A loss of employment or circumstances that render a
77-25 former spouse unable to support himself or herself through
78-1 appropriate employment by reason of incapacitating physical or
78-2 mental disability that occur after the divorce or annulment are not
78-3 grounds for the institution of spousal maintenance for the benefit
78-4 of the former spouse.
78-5 Sec. 8.009. Enforcement of Maintenance Order. (a) The
78-6 court may enforce by contempt the court's maintenance order or an
78-7 agreement for the payment of maintenance voluntarily entered into
78-8 between the parties and approved by the court.
78-9 (b) On the suit to enforce of a party entitled to receive
78-10 maintenance payments, the court may render judgment against a
78-11 defaulting party for an amount unpaid and owing after notice by
78-12 service of citation, answer, if any, and a hearing finding that the
78-13 defaulting party has failed or refused to carry out the terms of
78-14 the order. The judgment may be enforced by any means available for
78-15 the enforcement of judgment for debts.
78-16 (c) It is an affirmative defense to an allegation of
78-17 contempt of court or the violation of a condition of probation
78-18 requiring payment of court-ordered maintenance that the obligor:
78-19 (1) lacked the ability to provide maintenance in the
78-20 amount ordered;
78-21 (2) lacked property that could be sold, mortgaged, or
78-22 otherwise pledged to raise the funds needed;
78-23 (3) attempted unsuccessfully to borrow the needed
78-24 funds; and
78-25 (4) did not know of a source from which the money
79-1 could have been borrowed or otherwise legally obtained.
79-2 (d) The issue of the existence of an affirmative defense
79-3 does not arise unless evidence is admitted supporting the defense.
79-4 If the issue of the existence of an affirmative defense arises, an
79-5 obligor must prove the affirmative defense by a preponderance of
79-6 the evidence.
79-7 Sec. 8.010. Putative Spouse. In a suit to declare a
79-8 marriage void, a putative spouse who did not have knowledge of an
79-9 existing impediment to a valid marriage may be awarded maintenance
79-10 if otherwise qualified to receive maintenance under this chapter.
79-11 Sec. 8.011. Unmarried Cohabitants. An order for maintenance
79-12 is not authorized between unmarried cohabitants under any
79-13 circumstances.
79-14 CHAPTER 9. POST-DECREE PROCEEDINGS
79-15 SUBCHAPTER A. SUIT TO ENFORCE DECREE
79-16 Sec. 9.001. ENFORCEMENT OF DECREE. (a) A party affected by
79-17 a decree of divorce or annulment providing for a division of
79-18 property as provided by Chapter 7 may request enforcement of that
79-19 decree by filing a suit to enforce as provided by this chapter in
79-20 the court that rendered the decree.
79-21 (b) Except as otherwise provided in this chapter, a suit to
79-22 enforce shall be governed by the Texas Rules of Civil Procedure
79-23 applicable to the filing of an original lawsuit.
79-24 (c) A party whose rights, duties, powers, or liabilities may
79-25 be affected by the suit to enforce is entitled to receive notice by
80-1 citation and shall be commanded to appear by filing a written
80-2 answer. Thereafter, the proceedings shall be as in civil cases
80-3 generally.
80-4 Sec. 9.002. CONTINUING AUTHORITY TO ENFORCE DECREE. The
80-5 court that rendered the decree of divorce or annulment retains the
80-6 power to enforce the property division as provided by Chapter 7.
80-7 Sec. 9.003. FILING DEADLINES. (a) A suit to enforce the
80-8 division of tangible personal property in existence at the time of
80-9 the decree of divorce or annulment must be filed before the second
80-10 anniversary of the date the decree was signed or becomes final
80-11 after appeal, whichever date is later, or the suit is barred.
80-12 (b) A suit to enforce the division of future property not in
80-13 existence at the time of the original decree must be filed before
80-14 the second anniversary of the date the right to the property
80-15 matures or accrues or the decree becomes final, whichever date is
80-16 later, or the suit is barred.
80-17 Sec. 9.004. APPLICABILITY TO UNDIVIDED PROPERTY. The
80-18 procedures and limitations of this subchapter do not apply to
80-19 existing property not divided on divorce, which are governed by
80-20 Subchapter C and by the rules applicable to civil cases generally.
80-21 Sec. 9.005. NO JURY. A party may not demand a jury trial if
80-22 the procedures to enforce a decree of divorce or annulment provided
80-23 by this subchapter are invoked.
80-24 Sec. 9.006. ENFORCEMENT OF DIVISION OF PROPERTY.
80-25 (a) Except as provided by this subchapter and by the Texas Rules
81-1 of Civil Procedure, the court may render further orders to enforce
81-2 the division of property made in the decree of divorce or annulment
81-3 to assist in the implementation of or to clarify the prior order.
81-4 (b) The court may specify more precisely the manner of
81-5 effecting the property division previously made if the substantive
81-6 division of property is not altered or changed.
81-7 (c) An order of enforcement does not alter or affect the
81-8 finality of the decree of divorce or annulment being enforced.
81-9 Sec. 9.007. LIMITATION ON POWER OF COURT TO ENFORCE. (a) A
81-10 court may not amend, modify, alter, or change the division of
81-11 property made or approved in the decree of divorce or annulment.
81-12 An order to enforce the division is limited to an order to assist
81-13 in the implementation of or to clarify the prior order and may not
81-14 alter or change the substantive division of property.
81-15 (b) An order under this section that amends, modifies,
81-16 alters, or changes the actual, substantive division of property
81-17 made or approved in a final decree of divorce or annulment is
81-18 beyond the power of the divorce court and is unenforceable.
81-19 (c) The power of the court to render further orders to
81-20 assist in the implementation of or to clarify the property division
81-21 is abated while an appellate proceeding is pending.
81-22 Sec. 9.008. CLARIFICATION ORDER. (a) On the request of a
81-23 party or on the court's own motion, the court may render a
81-24 clarifying order before a motion for contempt is made or heard, in
81-25 conjunction with a motion for contempt or on denial of a motion for
82-1 contempt.
82-2 (b) On a finding by the court that the original form of the
82-3 division of property is not specific enough to be enforceable by
82-4 contempt, the court may render a clarifying order setting forth
82-5 specific terms to enforce compliance with the original division of
82-6 property.
82-7 (c) The court may not give retroactive effect to a
82-8 clarifying order.
82-9 (d) The court shall provide a reasonable time for compliance
82-10 before enforcing a clarifying order by contempt or in another
82-11 manner.
82-12 Sec. 9.009. DELIVERY OF PROPERTY. To enforce the division
82-13 of property made in a decree of divorce or annulment, the court may
82-14 make an order to deliver the specific existing property awarded,
82-15 without regard to whether the property is of especial value,
82-16 including an award of an existing sum of money or its equivalent.
82-17 Sec. 9.010. REDUCTION TO MONEY JUDGMENT. (a) If a party
82-18 fails to comply with a decree of divorce or annulment and delivery
82-19 of property awarded in the decree is no longer an adequate remedy,
82-20 the court may render a money judgment for the damages caused by
82-21 that failure to comply.
82-22 (b) If a party did not receive payments of money as awarded
82-23 in the decree of divorce or annulment, the court may render
82-24 judgment against a defaulting party for the amount of unpaid
82-25 payments to which the party is entitled.
83-1 (c) The remedy of a reduction to money judgment is in
83-2 addition to the other remedies provided by law.
83-3 (d) A money judgment rendered under this section may be
83-4 enforced by any means available for the enforcement of judgment for
83-5 debt.
83-6 Sec. 9.011. RIGHT TO FUTURE PROPERTY. (a) The court may,
83-7 by any remedy provided by this chapter, enforce an award of the
83-8 right to receive installment payments or a lump-sum payment due on
83-9 the maturation of an existing vested or nonvested right to be paid
83-10 in the future.
83-11 (b) The subsequent actual receipt by the non-owning party of
83-12 property awarded to the owner in a decree of divorce or annulment
83-13 creates a fiduciary obligation in favor of the owner and imposes a
83-14 constructive trust on the property for the benefit of the owner.
83-15 Sec. 9.012. CONTEMPT. (a) The court may enforce by
83-16 contempt an order requiring delivery of specific property or an
83-17 award of a right to future property.
83-18 (b) The court may not enforce by contempt an award in a
83-19 decree of divorce or annulment of a sum of money payable in a lump
83-20 sum or in future installment payments in the nature of debt, except
83-21 for:
83-22 (1) a sum of money in existence at the time the decree
83-23 was rendered; or
83-24 (2) a matured right to future payments as provided by
83-25 Section 9.011.
84-1 (c) This subchapter does not detract from or limit the
84-2 general power of a court to enforce an order of the court by
84-3 appropriate means.
84-4 Sec. 9.013. COSTS. The court may award costs in a
84-5 proceeding to enforce a property division under this subchapter as
84-6 in other civil cases.
84-7 Sec. 9.014. ATTORNEY'S FEES. The court may award reasonable
84-8 attorney's fees as costs in a proceeding under this subchapter.
84-9 The court may order the attorney's fees to be paid directly to the
84-10 attorney, who may enforce the order for fees in the attorney's own
84-11 name by any means available for the enforcement of a judgment for
84-12 debt.
84-13 (Sections 9.015-9.100 reserved for expansion)
84-14 SUBCHAPTER B. POST-DECREE QUALIFIED DOMESTIC RELATIONS ORDER
84-15 Sec. 9.101. JURISDICTION FOR QUALIFIED DOMESTIC RELATIONS
84-16 ORDER. (a) Notwithstanding any other provision of this chapter,
84-17 the court that rendered a final decree of divorce or annulment or
84-18 another final order dividing property under this title retains
84-19 continuing, exclusive jurisdiction to render an enforceable
84-20 qualified domestic relations order or similar order permitting
84-21 payment of pension, retirement plan, or other employee benefits
84-22 divisible under the law of this state or of the United States to an
84-23 alternate payee or other lawful payee.
84-24 (b) Unless prohibited by federal law, a suit seeking a
84-25 qualified domestic relations order or similar order under this
85-1 section applies to a previously divided pension, retirement plan,
85-2 or other employee benefit divisible under the law of this state or
85-3 of the United States, whether the plan or benefit is private,
85-4 state, or federal.
85-5 Sec. 9.102. PROCEDURE. (a) A party to a decree of divorce
85-6 or annulment may petition the court for a qualified domestic
85-7 relations order or similar order.
85-8 (b) Except as otherwise provided by this code, a petition
85-9 under this subchapter is governed by the Texas Rules of Civil
85-10 Procedure that apply to the filing of an original lawsuit.
85-11 (c) Each party whose rights may be affected by the petition
85-12 is entitled to receive notice by citation and shall be commanded to
85-13 appear by filing a written answer.
85-14 (d) The proceedings shall be conducted in the same manner as
85-15 civil cases generally.
85-16 Sec. 9.103. PRIOR FAILURE TO RENDER QUALIFIED DOMESTIC
85-17 RELATIONS ORDER. A party may petition a court to render a
85-18 qualified domestic relations order or similar order if the court
85-19 that rendered a final decree of divorce or annulment or another
85-20 final order dividing property under this chapter did not provide a
85-21 qualified domestic relations order or similar order permitting
85-22 payment of benefits to an alternate payee or other lawful payee.
85-23 Sec. 9.104. DEFECTIVE PRIOR DOMESTIC RELATIONS ORDER. If a
85-24 plan administrator or other person acting in an equivalent capacity
85-25 determines that a domestic relations order does not satisfy the
86-1 requirements of a qualified domestic relations order or similar
86-2 order, the court retains continuing, exclusive jurisdiction over
86-3 the parties and their property to the extent necessary to render a
86-4 qualified domestic relations order.
86-5 Sec. 9.105. LIBERAL CONSTRUCTION. The court shall liberally
86-6 construe this subchapter to effect payment of retirement benefits
86-7 that were divided by a previous decree that failed to contain a
86-8 qualified domestic relations order or similar order or that
86-9 contained an order that failed to meet the requirements of a
86-10 qualified domestic relations order or similar order.
86-11 (Sections 9.106-9.200 reserved for expansion)
86-12 SUBCHAPTER C. POST-DECREE DIVISION OF PROPERTY
86-13 Sec. 9.201. PROCEDURE FOR DIVISION OF CERTAIN PROPERTY NOT
86-14 DIVIDED ON DIVORCE OR ANNULMENT. (a) Either former spouse may
86-15 file a suit as provided by this subchapter to divide property not
86-16 divided or awarded to a spouse in a final decree of divorce or
86-17 annulment.
86-18 (b) Except as otherwise provided by this subchapter, the
86-19 suit is governed by the Texas Rules of Civil Procedure applicable
86-20 to the filing of an original lawsuit.
86-21 Sec. 9.202. LIMITATIONS. (a) A suit under this subchapter
86-22 must be filed before the second anniversary of the date a former
86-23 spouse unequivocally repudiates the existence of the ownership
86-24 interest of the other former spouse and communicates that
86-25 repudiation to the other former spouse.
87-1 (b) The two-year limitations period is tolled for the period
87-2 that a court of this state does not have jurisdiction over the
87-3 former spouses or over the property.
87-4 Sec. 9.203. DIVISION OF UNDIVIDED ASSETS WHEN PRIOR COURT
87-5 HAD JURISDICTION. (a) If a court of this state failed to dispose
87-6 of property subject to division in a final decree of divorce or
87-7 annulment even though the court had jurisdiction over the spouses
87-8 or over the property, the court shall divide the property in a
87-9 manner that the court deems just and right, having due regard for
87-10 the rights of each party and any children of the marriage.
87-11 (b) If a final decree of divorce or annulment rendered by a
87-12 court in another state failed to dispose of property subject to
87-13 division under the law of that state even though the court had
87-14 jurisdiction to do so, a court of this state shall apply the law of
87-15 the other state regarding undivided property as required by Section
87-16 1, Article IV, United States Constitution (the full faith and
87-17 credit clause), and enabling federal statutes.
87-18 Sec. 9.204. DIVISION OF UNDIVIDED ASSETS WHEN PRIOR COURT
87-19 LACKED JURISDICTION. (a) If a court of this state failed to
87-20 dispose of property subject to division in a final decree of
87-21 divorce or annulment because the court lacked jurisdiction over a
87-22 spouse or the property, and if that court subsequently acquires the
87-23 requisite jurisdiction, that court may divide the property in a
87-24 manner that the court deems just and right, having due regard for
87-25 the rights of each party and any children of the marriage.
88-1 (b) If a final decree of divorce or annulment rendered by a
88-2 court in another state failed to dispose of property subject to
88-3 division under the law of that state because the court lacked
88-4 jurisdiction over a spouse or the property, and if a court of this
88-5 state subsequently acquires the requisite jurisdiction over the
88-6 former spouses or over the property, the court in this state may
88-7 divide the property in a manner that the court deems just and
88-8 right, having due regard for the rights of each party and any
88-9 children of the marriage.
88-10 Sec. 9.205. ATTORNEY'S FEES. In a proceeding to divide
88-11 property previously undivided in a decree of divorce or annulment
88-12 as provided by this subchapter, the court may award reasonable
88-13 attorney's fees as costs. The court may order the attorney's fees
88-14 to be paid directly to the attorney, who may enforce the order in
88-15 the attorney's own name by any means available for the enforcement
88-16 of a judgment for debt.
88-17 (Sections 9.206-9.300 reserved for expansion)
88-18 SUBCHAPTER D. DISPOSITION OF UNDIVIDED BENEFICIAL INTEREST
88-19 Sec. 9.301. PRE-DECREE DESIGNATION OF EX-SPOUSE AS
88-20 BENEFICIARY OF LIFE INSURANCE. (a) If a decree of divorce or
88-21 annulment is rendered after an insured has designated the insured's
88-22 spouse as a beneficiary under a life insurance policy in force at
88-23 the time of rendition, a provision in the policy in favor of the
88-24 insured's former spouse is not effective unless:
88-25 (1) the decree designates the insured's former spouse
89-1 as the beneficiary;
89-2 (2) the insured redesignates the former spouse as the
89-3 beneficiary after rendition of the decree; or
89-4 (3) the former spouse is designated to receive the
89-5 proceeds in trust for, on behalf of, or for the benefit of a child
89-6 or a dependent of either former spouse.
89-7 (b) If a designation is not effective under Subsection (a),
89-8 the proceeds of the policy are payable to the named alternative
89-9 beneficiary or, if there is not a named alternative beneficiary, to
89-10 the estate of the insured.
89-11 (c) An insurer who pays the proceeds of a life insurance
89-12 policy issued by the insurer to the beneficiary under a designation
89-13 that is not effective under Subsection (a) is liable for payment of
89-14 the proceeds to the person or estate provided by Subsection (b)
89-15 only if:
89-16 (1) before payment of the proceeds to the designated
89-17 beneficiary, the insurer receives written notice at the home office
89-18 of the insurer from an interested person that the designation is
89-19 not effective under Subsection (a); and
89-20 (2) the insurer has not interpleaded the proceeds into
89-21 the registry of a court of competent jurisdiction in accordance
89-22 with the Texas Rules of Civil Procedure.
89-23 Sec. 9.302. PRE-DECREE DESIGNATION OF EX-SPOUSE AS
89-24 BENEFICIARY IN RETIREMENT BENEFITS AND OTHER FINANCIAL PLANS.
89-25 (a) If a decree of divorce or annulment is rendered after a
90-1 spouse, acting in the capacity of a participant, annuitant, or
90-2 account holder, has designated the other spouse as a beneficiary
90-3 under an individual retirement account, employee stock option plan,
90-4 stock option, or other form of savings, bonus, profit-sharing, or
90-5 other employer plan or financial plan of an employee or a
90-6 participant in force at the time of rendition, the designating
90-7 provision in the plan in favor of the other former spouse is not
90-8 effective unless:
90-9 (1) the decree designates the other former spouse as
90-10 the beneficiary;
90-11 (2) the designating former spouse redesignates the
90-12 other former spouse as the beneficiary after rendition of the
90-13 decree; or
90-14 (3) the other former spouse is designated to receive
90-15 the proceeds or benefits in trust for, on behalf of, or for the
90-16 benefit of a child or dependent of either former spouse.
90-17 (b) If a designation is not effective under Subsection (a),
90-18 the benefits or proceeds are payable to the named alternative
90-19 beneficiary or, if there is not a named alternative beneficiary, to
90-20 the designating former spouse.
90-21 (c) A business entity, employer, pension trust, insurer,
90-22 financial institution, or other person obligated to pay retirement
90-23 benefits or proceeds of a financial plan covered by this section
90-24 who pays the benefits or proceeds to the beneficiary under a
90-25 designation of the other former spouse that is not effective under
91-1 Subsection (a) is liable for payment of the benefits or proceeds to
91-2 the person provided by Subsection (b) only if:
91-3 (1) before payment of the benefits or proceeds to the
91-4 designated beneficiary, the payor receives written notice at the
91-5 home office or principal office of the payor from an interested
91-6 person that the designation of the beneficiary or fiduciary is not
91-7 effective under Subsection (a); and
91-8 (2) the payor has not interpleaded the benefits or
91-9 proceeds into the registry of a court of competent jurisdiction in
91-10 accordance with the Texas Rules of Civil Procedure.
91-11 (d) This section does not affect the right of a former
91-12 spouse to assert an ownership interest in an undivided pension,
91-13 retirement, annuity, or other financial plan described by this
91-14 section as provided by this subchapter.
91-15 (e) This section does not apply to the disposition of a
91-16 beneficial interest in a retirement benefit or other financial plan
91-17 of a public retirement system as defined by Section 802.001,
91-18 Government Code.
91-19 SECTION 2. Subpart D, Part 5, Chapter XIII, Texas Probate
91-20 Code, is amended by adding Sections 886 through 886F to read as
91-21 follows:
91-22 Sec. 886. APPOINTMENT OF RECEIVER. (a) If any of the
91-23 separate property of a person reported to be a prisoner of war or
91-24 missing in action by the United States Department of Defense
91-25 appears to be in danger of injury, loss, or waste and in need of a
92-1 representative, a district judge of the county in which the person
92-2 reported to be a prisoner of war or missing in action or the spouse
92-3 of the person resides or where the endangered separate property is
92-4 located may by order, with or without application, appoint a
92-5 suitable person as receiver to take charge of the endangered
92-6 separate property.
92-7 (b) The order must include a requirement that the receiver
92-8 post bond as in ordinary receiverships in a sum the judge considers
92-9 necessary to protect the separate property and shall specify the
92-10 duties and powers of the receiver as the judge considers necessary
92-11 for the protection, conservation, and preservation of the separate
92-12 property.
92-13 (c) The clerk shall enter the order in the minutes of the
92-14 court, and the person appointed shall post bond for submission to
92-15 the judge for approval. On approval by the judge, the bond shall
92-16 be filed with the clerk.
92-17 (d) The receiver shall take charge of the endangered
92-18 separate property under the duties and powers provided by the order
92-19 of appointment and by subsequent orders as the judge shall make.
92-20 Sec. 886A. EXPENDITURES BY RECEIVER. If during the
92-21 receivership under Section 886 of this code the needs of the spouse
92-22 or dependent children of the person reported to be a prisoner of
92-23 war or missing in action require the use of the income or corpus of
92-24 the estate for education, clothing, or subsistence, the judge may,
92-25 with or without application, by order entered in the minutes of the
93-1 court, appropriate an amount of the income or corpus sufficient for
93-2 that purpose. The income or corpus shall be used by the receiver
93-3 to pay claims for education, clothing, or subsistence that are
93-4 presented to the judge and approved and ordered to be paid.
93-5 Sec. 886B. INVESTMENTS, LOANS, AND CONTRIBUTIONS BY
93-6 RECEIVER. If during the receivership under Section 886 of this
93-7 code the receiver has on hand an amount of money belonging to the
93-8 person reported to be a prisoner of war or missing in action in
93-9 excess of the amount needed for current necessities and expenses,
93-10 the receiver may, under direction of the judge, invest, lend, or
93-11 contribute all or a part of the excess money in the manner provided
93-12 by this chapter for investments, loans, or contributions by
93-13 guardians. The receiver shall report to the judge all transactions
93-14 involving excess money in the manner that reports are required of
93-15 guardians.
93-16 Sec. 886C. RECEIVER'S EXPENSES, ACCOUNT, AND COMPENSATION.
93-17 (a) All necessary expenses incurred by the receiver in
93-18 administering the property may be reported monthly to the judge by
93-19 a sworn statement of account, including a report of:
93-20 (1) the receiver's acts;
93-21 (2) the condition of the property;
93-22 (3) the status of the threatened danger to the
93-23 property; and
93-24 (4) the progress made toward abatement of the
93-25 threatened danger.
94-1 (b) If the judge is satisfied that the statement is correct
94-2 and reasonable in all respects, the judge shall promptly by order
94-3 approve the report and authorize the reimbursement of the receiver
94-4 from the funds under the receiver's control.
94-5 (c) For official services rendered, the receiver is entitled
94-6 to be compensated in the same manner and amount as is provided by
94-7 this chapter for similar services rendered by guardians of estates.
94-8 Sec. 886D. CLOSING RECEIVERSHIP. When the threatened danger
94-9 has abated and the separate property is no longer liable to injury,
94-10 loss, or waste for the lack of a representative, the receiver
94-11 shall:
94-12 (1) report to the judge; and
94-13 (2) file with the clerk a full and final sworn account
94-14 of:
94-15 (A) all property received by the receiver;
94-16 (B) all sums paid out;
94-17 (C) all acts performed by the receiver with
94-18 respect to the property; and
94-19 (D) all property remaining in the receiver's
94-20 control.
94-21 Sec. 886E. ACTION OF JUDGE. (a) If on hearing the report
94-22 and account the judge is satisfied that the danger of injury, loss,
94-23 or waste has abated and that the report and account are correct,
94-24 the judge shall render an order so finding and shall direct the
94-25 receiver to deliver the property to the person from whom the
95-1 receiver took possession as receiver, to the person who was
95-2 reported to be a prisoner of war or missing in action, or to
95-3 another person the judge finds to be entitled to possession of the
95-4 estate. The person to whom the property is delivered shall execute
95-5 and file with the clerk an appropriate receipt for the property
95-6 delivered.
95-7 (b) The order of the judge shall discharge the receiver and
95-8 the receiver's sureties.
95-9 (c) If the judge is not satisfied that the danger has
95-10 abated, or is not satisfied with the report and account, the judge
95-11 shall render an order continuing the receivership in effect until
95-12 the judge is so satisfied.
95-13 Sec. 886F. RECORDATION OF PROCEEDINGS. All orders, bonds,
95-14 reports, accounts, and notices in the receivership proceedings
95-15 shall be recorded in the minutes of the court.
95-16 SECTION 3. Title 1, Family Code, as that title existed
95-17 before the effective date of this Act, is repealed.
95-18 SECTION 4. The change in law made by this Act does not
95-19 affect a proceeding under the Family Code pending on the effective
95-20 date of this Act. A proceeding pending on the effective date of
95-21 this Act is governed by the law in effect at the time the
95-22 proceeding was commenced, and the former law is continued in effect
95-23 for that purpose.
95-24 SECTION 5. The importance of this legislation and the
95-25 crowded condition of the calendars in both houses create an
96-1 emergency and an imperative public necessity that the
96-2 constitutional rule requiring bills to be read on three several
96-3 days in each house be suspended, and this rule is hereby suspended,
96-4 and that this Act take effect and be in force from and after its
96-5 passage, and it is so enacted.