1-1 By: Harris S.B. No. 334 1-2 (In the Senate - Filed January 28, 1997; February 3, 1997, 1-3 read first time and referred to Committee on Jurisprudence; 1-4 February 26, 1997, reported favorably, as amended, by the following 1-5 vote: Yeas 6, Nays 0; February 26, 1997, sent to printer.) 1-6 COMMITTEE AMENDMENT NO. 1 By: Harris 1-7 Amend S.B. No. 334 as follows: 1-8 (1) On page 60, between lines 13 and 14, insert the 1-9 following: 1-10 "Sec. 6.702. WAITING PERIOD. (a) The court may not grant a 1-11 divorce before the 60th day after the date the suit was filed. A 1-12 decree rendered in violation of this subsection is not subject to 1-13 collateral attack. 1-14 (b) A waiting period is not required before a court may 1-15 grant an annulment or declare a marriage void other than as 1-16 required in civil cases generally." 1-17 (2) On page 60, line 14, strike "6.702." and substitute 1-18 "6.703." 1-19 (3) On page 60, line 17, strike "6.703." and substitute 1-20 "6.704." 1-21 (4) On page 60, line 25, strike "6.704." and substitute 1-22 "6.705." 1-23 (5) On page 61, line 8, strike "6.705." and substitute 1-24 "6.706." 1-25 (6) On page 61, line 21, strike "6.706." and substitute 1-26 "6.707." 1-27 (7) On page 62, line 9, strike "6.707." and substitute 1-28 "6.708." 1-29 (8) On page 62, line 16, strike "6.708." and substitute 1-30 "6.709." 1-31 A BILL TO BE ENTITLED 1-32 AN ACT 1-33 relating to the recodification of statutes relating to the marriage 1-34 relationship. 1-35 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-36 SECTION 1. The Family Code is recodified by reenacting 1-37 Title 1 to read as follows: 1-38 TITLE 1. THE MARRIAGE RELATIONSHIP 1-39 SUBTITLE A. MARRIAGE 1-40 CHAPTER 1. GENERAL PROVISIONS 1-41 SUBCHAPTER A. DEFINITIONS 1-42 Sec. 1.001. APPLICABILITY OF DEFINITIONS. (a) The 1-43 definitions in this subchapter apply to this title. 1-44 (b) Except as provided by this subchapter, the definitions 1-45 in Chapter 101 apply to terms used in this title. 1-46 (c) If, in another part of this title, a term defined by 1-47 this subchapter has a meaning different from the meaning provided 1-48 by this subchapter, the meaning of that other provision prevails. 1-49 Sec. 1.002. COURT. "Court" means the district court, 1-50 juvenile court having the jurisdiction of a district court, or 1-51 other court expressly given jurisdiction of a suit under this 1-52 title. 1-53 Sec. 1.003. SUIT FOR DISSOLUTION OF MARRIAGE. "Suit for 1-54 dissolution of a marriage" includes a suit for divorce or annulment 1-55 or to declare a marriage void. 1-56 (Sections 1.004-1.100 reserved for expansion) 1-57 SUBCHAPTER B. PUBLIC POLICY 1-58 Sec. 1.101. EVERY MARRIAGE PRESUMED VALID. In order to 1-59 promote the public health and welfare and to provide the necessary 1-60 records, this code specifies detailed rules to be followed in 1-61 establishing the marriage relationship. However, in order to 1-62 provide stability for those entering into the marriage relationship 1-63 in good faith and to provide for an orderly determination of 2-1 parentage and security for the children of the relationship, it is 2-2 the policy of this state to preserve and uphold each marriage 2-3 against claims of invalidity unless a strong reason exists for 2-4 holding the marriage void or voidable. Therefore, every marriage 2-5 entered into in this state is presumed to be valid unless expressly 2-6 made void by Chapter 6 or unless expressly made voidable by Chapter 2-7 6 and annulled as provided by that chapter. 2-8 Sec. 1.102. MOST RECENT MARRIAGE PRESUMED VALID. When two 2-9 or more marriages of a person to different spouses are alleged, the 2-10 most recent marriage is presumed to be valid as against each 2-11 marriage that precedes the most recent marriage until one who 2-12 asserts the validity of a prior marriage proves the validity of the 2-13 prior marriage. 2-14 Sec. 1.103. PERSONS MARRIED ELSEWHERE. The law of this 2-15 state applies to persons married elsewhere who are domiciled in 2-16 this state. 2-17 Sec. 1.104. CAPACITY OF SPOUSE. Except as expressly 2-18 provided by statute or by the constitution, a person, regardless of 2-19 age, who has been married in accordance with the law of this state 2-20 has the capacity and power of an adult, including the capacity to 2-21 contract. 2-22 Sec. 1.105. JOINDER IN CIVIL SUITS. (a) A spouse may sue 2-23 and be sued without the joinder of the other spouse. 2-24 (b) When claims or liabilities are joint and several, the 2-25 spouses may be joined under the rules relating to joinder of 2-26 parties generally. 2-27 Sec. 1.106. CRIMINAL CONVERSATION NOT AUTHORIZED. A right 2-28 of action by one spouse against a third party for criminal 2-29 conversation is not authorized in this state. 2-30 Sec. 1.107. ALIENATION OF AFFECTION NOT AUTHORIZED. A right 2-31 of action by one spouse against a third party for alienation of 2-32 affection is not authorized in this state. 2-33 Sec. 1.108. PROMISE OR AGREEMENT MUST BE IN WRITING. A 2-34 promise or agreement made on consideration of marriage or 2-35 nonmarital conjugal cohabitation is not enforceable unless the 2-36 promise or agreement or a memorandum of the promise or agreement is 2-37 in writing and signed by the person obligated by the promise or 2-38 agreement. 2-39 CHAPTER 2. THE MARRIAGE RELATIONSHIP 2-40 SUBCHAPTER A. APPLICATION FOR MARRIAGE LICENSE 2-41 Sec. 2.001. MARRIAGE LICENSE. (a) A man and a woman 2-42 desiring to enter into a ceremonial marriage must obtain a marriage 2-43 license from the county clerk of any county of this state. 2-44 (b) A license may not be issued for the marriage of persons 2-45 of the same sex. 2-46 Sec. 2.002. Application for License. Except as provided by 2-47 Section 2.006, each person applying for a license must: 2-48 (1) appear before the county clerk; 2-49 (2) submit the person's proof of identity and age as 2-50 provided by this subchapter; 2-51 (3) provide the information applicable to that person 2-52 for which spaces are provided in the application for a marriage 2-53 license; 2-54 (4) mark the appropriate boxes provided in the 2-55 application; and 2-56 (5) take the oath printed on the application and sign 2-57 the application before the county clerk. 2-58 Sec. 2.003. Application for License by Minor. In addition 2-59 to the other requirements provided by this chapter, a person under 2-60 18 years of age applying for a license must provide to the county 2-61 clerk: 2-62 (1) documents establishing, as provided by Section 2-63 2.102, parental consent for the person to the marriage; 2-64 (2) documents establishing that a prior marriage of 2-65 the person has been dissolved; or 2-66 (3) a court order granted under Section 2.103 2-67 authorizing the marriage of the person. 2-68 Sec. 2.004. Application Form. (a) The county clerk shall 2-69 furnish the application form as prescribed by the bureau of vital 3-1 statistics. 3-2 (b) The application form must contain: 3-3 (1) a heading entitled "Application for Marriage 3-4 License, ____________ County, Texas"; 3-5 (2) spaces for each applicant's full name, including 3-6 the woman's maiden surname, address, social security number, if 3-7 any, date of birth, and place of birth, including city, county, and 3-8 state; 3-9 (3) a space for indicating the document tendered by 3-10 each applicant as proof of identity and age; 3-11 (4) spaces for indicating whether each applicant has 3-12 been divorced within the last 30 days; 3-13 (5) printed boxes for each applicant to check "true" 3-14 or "false" in response to the following statement: "I am not 3-15 presently married."; 3-16 (6) printed boxes for each applicant to check "true" 3-17 or "false" in response to the following statement: "The other 3-18 applicant is not related to me as: 3-19 (A) an ancestor or descendant, by blood or 3-20 adoption; 3-21 (B) a brother or sister, of the whole or half 3-22 blood or by adoption; 3-23 (C) a parent's brother or sister, of the whole 3-24 or half blood or by adoption; or 3-25 (D) a son or daughter of a brother or sister, of 3-26 the whole or half blood or by adoption."; 3-27 (7) a printed oath reading: "I SOLEMNLY SWEAR (OR 3-28 AFFIRM) THAT THE INFORMATION I HAVE GIVEN IN THIS APPLICATION IS 3-29 CORRECT."; 3-30 (8) spaces immediately below the printed oath for the 3-31 applicants' signatures; 3-32 (9) a certificate of the county clerk that: 3-33 (A) each applicant made the oath and the date 3-34 and place that it was made; or 3-35 (B) an applicant did not appear personally but 3-36 the prerequisites for the license have been fulfilled as provided 3-37 by this chapter; 3-38 (10) spaces for indicating the date of the marriage 3-39 and the county in which the marriage is performed; and 3-40 (11) a space for the address to which the applicants 3-41 desire the completed license to be mailed. 3-42 Sec. 2.005. Proof of Identity and Age. (a) The county 3-43 clerk shall require proof of the identity and age of each 3-44 applicant. 3-45 (b) The proof must be established by a certified copy of the 3-46 applicant's birth certificate or by some certificate, license, or 3-47 document issued by this state or another state, the United States, 3-48 or a foreign government. 3-49 Sec. 2.006. Absent Applicant. (a) If an applicant is 3-50 unable to appear personally before the county clerk to apply for a 3-51 marriage license, any adult person or the other applicant may apply 3-52 on behalf of the absent applicant. 3-53 (b) The person applying on behalf of an absent applicant 3-54 shall provide to the clerk: 3-55 (1) the affidavit of the absent applicant as provided 3-56 by this subchapter; 3-57 (2) proof of the identity and age of the absent 3-58 applicant as provided by this subchapter; and 3-59 (3) if required because the absent applicant is a 3-60 person under 18 years of age, the documents establishing parental 3-61 consent, documents establishing that a prior marriage has been 3-62 dissolved, or a court order authorizing the marriage of the absent, 3-63 underage applicant. 3-64 Sec. 2.007. AFFIDAVIT OF ABSENT APPLICANT. The affidavit of 3-65 an absent applicant must include: 3-66 (1) the absent applicant's full name, including the 3-67 maiden surname of a female applicant, address, date of birth, place 3-68 of birth, including city, county, and state, citizenship, and 3-69 social security number, if any; 4-1 (2) a declaration that the absent applicant has not 4-2 been divorced within the last 30 days; 4-3 (3) a declaration that the absent applicant is: 4-4 (A) not presently married; or 4-5 (B) married to the other applicant and they wish 4-6 to marry again; 4-7 (4) a declaration that the other applicant is not 4-8 related to the absent applicant as: 4-9 (A) an ancestor or descendant, by blood or 4-10 adoption; 4-11 (B) a brother or sister, of the whole or half 4-12 blood or by adoption; 4-13 (C) a parent's brother or sister, of the whole 4-14 or half blood or by adoption; or 4-15 (D) a son or daughter of a brother or sister, of 4-16 the whole or half blood or by adoption; 4-17 (5) a declaration that the absent applicant desires to 4-18 marry and the name, age, and address of the person to whom the 4-19 absent applicant desires to be married; 4-20 (6) the approximate date on which the marriage is to 4-21 occur; 4-22 (7) the reason the absent applicant is unable to 4-23 appear personally before the county clerk for the issuance of the 4-24 license; and 4-25 (8) if the absent applicant will be unable to attend 4-26 the ceremony, the appointment of any adult, other than the other 4-27 applicant, to act as proxy for the purpose of participating in the 4-28 ceremony. 4-29 Sec. 2.008. Execution of Application by Clerk. (a) The 4-30 county clerk shall: 4-31 (1) determine that all necessary information, other 4-32 than the date of the marriage ceremony, the county in which the 4-33 ceremony is conducted, and the name of the person who performs the 4-34 ceremony, is recorded on the application and that all necessary 4-35 documents are submitted; 4-36 (2) administer the oath to each applicant appearing 4-37 before the clerk; 4-38 (3) have each applicant appearing before the clerk 4-39 sign the application in the clerk's presence; and 4-40 (4) execute the clerk's certificate on the 4-41 application. 4-42 (b) A person appearing before the clerk on behalf of an 4-43 absent applicant is not required to take the oath on behalf of the 4-44 absent applicant. 4-45 Sec. 2.009. Issuance of License. (a) Except as provided by 4-46 Subsection (b), the county clerk may not issue a license if either 4-47 applicant: 4-48 (1) fails to provide the information required by this 4-49 subchapter; 4-50 (2) fails to submit proof of age and identity; 4-51 (3) is under 14 years of age and has not been granted 4-52 a court order as provided by Section 2.103; 4-53 (4) is 14 years of age or older but under 18 years of 4-54 age and has not presented at least one of the following: 4-55 (A) parental consent as provided by Section 4-56 2.102; 4-57 (B) documents establishing that a prior marriage 4-58 of the applicant has been dissolved; or 4-59 (C) a court order as provided by Section 2.103; 4-60 (5) checks "false" in response to a statement in the 4-61 application, except as provided by Subsection (b), or fails to make 4-62 a required declaration in an affidavit required of an absent 4-63 applicant; or 4-64 (6) indicates that the applicant has been divorced by 4-65 a decree of a court of this state within the last 30 days, unless: 4-66 (A) the applicants were divorced from each 4-67 other; or 4-68 (B) the prohibition against remarriage is waived 4-69 as provided by Section 6.802. 5-1 (b) If an applicant checks "false" in response to the 5-2 statement "I am not presently married," the county clerk shall 5-3 inquire as to whether the applicant is presently married to the 5-4 other applicant. If the applicant states that the applicant is 5-5 currently married to the other applicant, the county clerk shall 5-6 record that statement on the license before the administration of 5-7 the oath. The county clerk may not refuse to issue a license on 5-8 the ground that the applicants are already married to each other. 5-9 (c) On the proper execution of the application, the clerk 5-10 shall: 5-11 (1) prepare the license; 5-12 (2) record on the reverse side of the license the 5-13 names of the licensees, the date that the license is issued, and, 5-14 if applicable, the name of the person appointed to act as proxy for 5-15 an absent applicant, if any; 5-16 (3) record the time at which the license was issued; 5-17 and 5-18 (4) distribute to each applicant printed materials 5-19 about acquired immune deficiency syndrome (AIDS) and human 5-20 immunodeficiency virus (HIV) and note on the license that the 5-21 distribution was made. 5-22 Sec. 2.010. AIDS INFORMATION. Materials providing 5-23 information about acquired immune deficiency syndrome (AIDS) and 5-24 human immunodeficiency virus (HIV) shall be prepared and provided 5-25 to the clerk by the Texas Department of Health and shall be 5-26 designed to inform the applicants about: 5-27 (1) the incidence and mode of transmission of AIDS and 5-28 HIV; 5-29 (2) the local availability of medical procedures, 5-30 including voluntary testing, designed to show or help show whether 5-31 a person has AIDS or HIV infection, antibodies to HIV, or infection 5-32 with any other probable causative agent of AIDS; and 5-33 (3) available and appropriate counseling services 5-34 regarding AIDS and HIV infection. 5-35 Sec. 2.011. RECORDING. The county clerk shall record all 5-36 licenses issued by the clerk and all documents submitted with an 5-37 application for a license or note a summary of the documents on the 5-38 application. 5-39 Sec. 2.012. VIOLATION BY COUNTY CLERK; PENALTY. A county 5-40 clerk or deputy county clerk who violates or fails to comply with 5-41 this subchapter commits an offense. An offense under this section 5-42 is a misdemeanor punishable by a fine of not less than $200 and not 5-43 more than $500. 5-44 (Sections 2.013-2.100 reserved for expansion) 5-45 SUBCHAPTER B. UNDERAGE APPLICANTS 5-46 Sec. 2.101. GENERAL AGE REQUIREMENT. Except as otherwise 5-47 provided by this subchapter or on a showing that a prior marriage 5-48 has been dissolved, a county clerk may not issue a marriage license 5-49 if either applicant is under 18 years of age. 5-50 Sec. 2.102. PARENTAL CONSENT FOR UNDERAGE APPLICANT. 5-51 (a) If an applicant is 14 years of age or older but under 18 years 5-52 of age, the county clerk shall issue the license if parental 5-53 consent is given as provided by this section. 5-54 (b) Parental consent must be evidenced by a written 5-55 declaration on a form supplied by the county clerk in which the 5-56 person consents to the marriage and swears that the person is a 5-57 parent (if there is no judicially designated managing conservator 5-58 or guardian of the applicant's person) or a judicially designated 5-59 managing conservator or guardian (whether an individual, authorized 5-60 agency, or court) of the applicant's person. 5-61 (c) Except as otherwise provided by this section, consent 5-62 must be acknowledged before a county clerk. 5-63 (d) If the person giving parental consent resides in another 5-64 state, the consent may be acknowledged before an officer authorized 5-65 to issue marriage licenses in that state. 5-66 (e) If the person giving parental consent is unable because 5-67 of illness or incapacity to comply with the provisions of 5-68 Subsection (c) or (d), the consent may be acknowledged before any 5-69 officer authorized to take acknowledgments. A consent under this 6-1 subsection must be accompanied by a physician's affidavit stating 6-2 that the person giving parental consent is unable to comply because 6-3 of illness or incapacity. 6-4 (f) Parental consent must be given at the time the 6-5 application for the marriage license is made or not earlier than 6-6 the 30th day preceding the date the application is made. 6-7 Sec. 2.103. COURT ORDER FOR UNDERAGE APPLICANT. (a) A 6-8 minor may petition the court in the minor's own name for an order 6-9 granting permission to marry. In a suit under this section, the 6-10 trial judge may advance the suit if the best interest of the 6-11 applicant would be served by an early hearing. 6-12 (b) The petition must be filed in the county where a parent 6-13 resides if a managing conservator or a guardian of the person has 6-14 not been appointed. If a managing conservator or a guardian of the 6-15 person has been appointed, the petition must be filed in the county 6-16 where the managing conservator or the guardian of the person 6-17 resides. If no person authorized to consent to marriage for the 6-18 minor resides in this state, the petition must be filed in the 6-19 county where the minor lives. 6-20 (c) The petition must include: 6-21 (1) a statement of the reasons the minor desires to 6-22 marry; 6-23 (2) a statement of whether each parent is living or is 6-24 dead; 6-25 (3) the name and residence address of each living 6-26 parent; and 6-27 (4) a statement of whether a managing conservator or a 6-28 guardian of the person has been appointed for the minor. 6-29 (d) Process shall be served as in other civil cases on each 6-30 living parent of the minor or, if a managing conservator or a 6-31 guardian of the person has been appointed, on the managing 6-32 conservator or guardian of the person. Citation may be given by 6-33 publication as in other civil cases, except that notice shall be 6-34 published one time only. 6-35 (e) The court shall appoint a guardian ad litem to represent 6-36 the minor in the proceeding and to speak for or against the 6-37 petition in the manner the guardian ad litem believes to be in the 6-38 best interest of the minor. The court shall specify a fee to be 6-39 paid by the minor for the services of the guardian ad litem. The 6-40 fee shall be collected in the same manner as other costs of the 6-41 proceeding. 6-42 (f) If after a hearing the court, sitting without a jury, 6-43 believes marriage to be in the best interest of the minor, the 6-44 court, by order, shall grant the minor permission to marry. 6-45 (Sections 2.104-2.200 reserved for expansion) 6-46 SUBCHAPTER C. CEREMONY AND RETURN OF LICENSE 6-47 Sec. 2.201. EXPIRATION OF LICENSE. If a marriage ceremony 6-48 has not been conducted before the 31st day after the date the 6-49 license is issued, the marriage license expires. 6-50 Sec. 2.202. PERSONS AUTHORIZED TO CONDUCT CEREMONY. 6-51 (a) The following persons are authorized to conduct a marriage 6-52 ceremony: 6-53 (1) a licensed or ordained Christian minister or 6-54 priest; 6-55 (2) a Jewish rabbi; 6-56 (3) a person who is an officer of a religious 6-57 organization and who is authorized by the organization to conduct a 6-58 marriage ceremony; and 6-59 (4) a justice of the supreme court, judge of the court 6-60 of criminal appeals, justice of the courts of appeals, judge of the 6-61 district, county, and probate courts, judge of the county courts at 6-62 law, judge of the courts of domestic relations, judge of the 6-63 juvenile courts, retired justice or judge of those courts, justice 6-64 of the peace, retired justice of the peace, or judge or magistrate 6-65 of a federal court of this state. 6-66 (b) For the purposes of this section, a retired judge or 6-67 justice is a former judge or justice who is vested in the Judicial 6-68 Retirement System of Texas Plan One or the Judicial Retirement 6-69 System of Texas Plan Two or who has an aggregate of at least 12 7-1 years of service as judge or justice of any type listed in 7-2 Subsection (a)(4). 7-3 Sec. 2.203. CEREMONY. (a) On receiving an unexpired 7-4 marriage license, an authorized person may conduct the marriage 7-5 ceremony as provided by this subchapter. 7-6 (b) A person unable to appear for the ceremony may assent to 7-7 marriage by the appearance of a proxy appointed in the affidavit 7-8 authorized by Subchapter A. 7-9 Sec. 2.204. 72-HOUR WAITING PERIOD; EXCEPTIONS. (a) Except 7-10 as provided by this section, a marriage ceremony may not take place 7-11 during the 72-hour period immediately following the issuance of the 7-12 marriage license. 7-13 (b) The 72-hour waiting period after issuance of a marriage 7-14 license does not apply to an applicant who: 7-15 (1) is a member of the armed forces of the United 7-16 States and on active duty; or 7-17 (2) obtains a written waiver under Subsection (c). 7-18 (c) An applicant may request a judge of a court with 7-19 jurisdiction in family law cases, a justice of the supreme court, a 7-20 judge of the court of criminal appeals, or a judge of a court of 7-21 appeals for a written waiver permitting the marriage ceremony to 7-22 take place during the 72-hour period immediately following the 7-23 issuance of the marriage license. If the judge finds that there is 7-24 good cause for the marriage to take place during the period, the 7-25 judge shall sign the waiver. 7-26 Sec. 2.205. DISCRIMINATION IN CONDUCTING MARRIAGE 7-27 PROHIBITED. (a) A person authorized to conduct a marriage 7-28 ceremony by this subchapter is prohibited from discriminating on 7-29 the basis of race, religion, or national origin against an 7-30 applicant who is otherwise competent to be married. 7-31 (b) On a finding by the State Commission on Judicial Conduct 7-32 that a person has intentionally violated Subsection (a), the 7-33 commission may recommend to the supreme court that the person be 7-34 removed from office. 7-35 Sec. 2.206. RETURN OF LICENSE; PENALTY. (a) The person who 7-36 conducts a marriage ceremony shall record on the license the date 7-37 on which and the county in which the ceremony is performed and the 7-38 person's name, subscribe the license, and return the license to the 7-39 county clerk who issued it not later than the 30th day after the 7-40 date the ceremony is conducted. 7-41 (b) A person who fails to comply with this section commits 7-42 an offense. An offense under this section is a misdemeanor 7-43 punishable by a fine of not less than $200 and not more than $500. 7-44 Sec. 2.207. MARRIAGE CONDUCTED AFTER LICENSE EXPIRED; 7-45 PENALTY. (a) A person who is to conduct a marriage ceremony shall 7-46 determine whether the license has expired from the county clerk's 7-47 endorsement on the license. 7-48 (b) A person who conducts a marriage ceremony after the 7-49 marriage license has expired commits an offense. An offense under 7-50 this section is a misdemeanor punishable by a fine of not less than 7-51 $200 and not more than $500. 7-52 Sec. 2.208. RECORDING AND DELIVERY OF LICENSE. (a) The 7-53 county clerk shall record a returned marriage license and mail the 7-54 license to the address indicated on the application. 7-55 (b) On the application form the county clerk shall record: 7-56 (1) the date of the marriage ceremony; 7-57 (2) the county in which the ceremony was conducted; 7-58 and 7-59 (3) the name of the person who conducted the ceremony. 7-60 Sec. 2.209. DUPLICATE LICENSE. (a) On the application and 7-61 proof of identity of a person whose marriage is recorded in the 7-62 records of the county clerk, the county clerk shall issue a 7-63 duplicate marriage license completed with information as contained 7-64 in the records. 7-65 (b) On the application and proof of identity of both persons 7-66 to whom a marriage license was issued but not recorded as required 7-67 by Section 2.208, the county clerk shall issue a duplicate license 7-68 if each person applying submits to the clerk an affidavit stating: 7-69 (1) that the persons to whom the original license was 8-1 issued were married to each other before the expiration date of the 8-2 original license by a person authorized to conduct a marriage 8-3 ceremony; 8-4 (2) the name of the person who conducted the ceremony; 8-5 and 8-6 (3) the date of the ceremony. 8-7 (Sections 2.210-2.300 reserved for expansion) 8-8 SUBCHAPTER D. VALIDITY OF MARRIAGE 8-9 Sec. 2.301. FRAUD, MISTAKE, OR ILLEGALITY IN OBTAINING 8-10 LICENSE. Except as otherwise provided by this chapter, the 8-11 validity of a marriage is not affected by any fraud, mistake, or 8-12 illegality that occurred in obtaining the marriage license. 8-13 Sec. 2.302. CEREMONY CONDUCTED BY UNAUTHORIZED PERSON. The 8-14 validity of a marriage is not affected by the lack of authority of 8-15 the person conducting the marriage ceremony if: 8-16 (1) there was a reasonable appearance of authority by 8-17 that person; and 8-18 (2) at least one party to the marriage participated in 8-19 the ceremony in good faith and that party treats the marriage as 8-20 valid. 8-21 (Sections 2.303-2.400 reserved for expansion) 8-22 SUBCHAPTER E. MARRIAGE WITHOUT FORMALITIES 8-23 Sec. 2.401. PROOF OF INFORMAL MARRIAGE. (a) In a judicial, 8-24 administrative, or other proceeding, the marriage of a man and 8-25 woman may be proved by evidence that: 8-26 (1) a declaration of their marriage has been signed as 8-27 provided by this subchapter; or 8-28 (2) the man and woman agreed to be married and after 8-29 the agreement they lived together in this state as husband and wife 8-30 and there represented to others that they were married. 8-31 (b) If a proceeding in which a marriage is to be proved as 8-32 provided by Subsection (a)(2) is not commenced before the second 8-33 anniversary of the date on which the parties separated and ceased 8-34 living together, it is rebuttably presumed that the parties did not 8-35 enter into an agreement to be married. 8-36 Sec. 2.402. DECLARATION AND REGISTRATION OF INFORMAL 8-37 MARRIAGE. (a) A declaration of informal marriage must be signed 8-38 on a form prescribed by the bureau of vital statistics and provided 8-39 by the county clerk. Each party to the declaration shall provide 8-40 the information required in the form. 8-41 (b) The declaration form must contain: 8-42 (1) a heading entitled "Declaration and Registration 8-43 of Informal Marriage, ___________ County, Texas"; 8-44 (2) spaces for each party's full name, including the 8-45 woman's maiden surname, address, date of birth, place of birth, 8-46 including city, county, and state, and social security number, if 8-47 any; 8-48 (3) a space for indicating the type of document 8-49 tendered by each party as proof of age and identity; 8-50 (4) printed boxes for each party to check "true" or 8-51 "false" in response to the following statement: "The other party 8-52 is not related to me as: 8-53 (A) an ancestor or descendant, by blood or 8-54 adoption; 8-55 (B) a brother or sister, of the whole or half 8-56 blood or by adoption; 8-57 (C) a parent's brother or sister, of the whole 8-58 or half blood or by adoption; or 8-59 (D) a son or daughter of a brother or sister, of 8-60 the whole or half blood or by adoption."; 8-61 (5) a printed declaration and oath reading: "I 8-62 SOLEMNLY SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO 8-63 EACH OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE) WE 8-64 AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED TOGETHER AS 8-65 HUSBAND AND WIFE AND IN THIS STATE WE REPRESENTED TO OTHERS THAT WE 8-66 WERE MARRIED. SINCE THE DATE OF MARRIAGE TO THE OTHER PARTY I HAVE 8-67 NOT BEEN MARRIED TO ANY OTHER PERSON. THIS DECLARATION IS TRUE AND 8-68 THE INFORMATION IN IT WHICH I HAVE GIVEN IS CORRECT."; 8-69 (6) spaces immediately below the printed declaration 9-1 and oath for the parties' signatures; and 9-2 (7) a certificate of the county clerk that the parties 9-3 made the declaration and oath and the place and date it was made. 9-4 (c) If either party is underage at the time of filing a 9-5 declaration, the declaration must have attached an acknowledged 9-6 consent signed by a parent of each underage person. 9-7 Sec. 2.403. PROOF OF IDENTITY AND AGE. The county clerk 9-8 shall require proof of the identity and age of each party to the 9-9 declaration of informal marriage to be established by a certified 9-10 copy of the party's birth certificate or by some certificate, 9-11 license, or document issued by this state or another state, the 9-12 United States, or a foreign government. 9-13 Sec. 2.404. RECORDING OF DECLARATION OF INFORMAL MARRIAGE. 9-14 (a) The county clerk shall: 9-15 (1) determine that all necessary information is 9-16 recorded on the declaration of informal marriage form and that all 9-17 necessary documents are submitted to the clerk; 9-18 (2) administer the oath to each party to the 9-19 declaration; 9-20 (3) have each party sign the declaration in the 9-21 clerk's presence; and 9-22 (4) execute the clerk's certificate to the 9-23 declaration. 9-24 (b) The county clerk may not certify or record the 9-25 declaration if: 9-26 (1) either party fails to supply any information or 9-27 provide any document required by this subchapter; 9-28 (2) either party is under 16 years of age and waiver 9-29 of the age requirement has not been ordered; or 9-30 (3) either party checks "false" in response to the 9-31 statement of relationship to the other party. 9-32 (c) On execution of the declaration, the county clerk shall 9-33 record the declaration and all documents submitted with the 9-34 declaration or note a summary of them on the declaration form, 9-35 deliver the original of the declaration to the parties, and send a 9-36 copy to the bureau of vital statistics. 9-37 (d) A declaration recorded as provided in this section is 9-38 prima facie evidence of the marriage of the parties. 9-39 (e) At the time the parties sign the declaration, the clerk 9-40 shall distribute to each party printed materials about acquired 9-41 immune deficiency syndrome (AIDS) and human immunodeficiency virus 9-42 (HIV). The clerk shall note on the declaration that the 9-43 distribution was made. The materials shall be prepared and 9-44 provided to the clerk by the Texas Department of Health and shall 9-45 be designed to inform the parties about: 9-46 (1) the incidence and mode of transmission of AIDS and 9-47 HIV; 9-48 (2) the local availability of medical procedures, 9-49 including voluntary testing, designed to show or help show whether 9-50 a person has AIDS or HIV infection, antibodies to HIV, or infection 9-51 with any other probable causative agent of AIDS; and 9-52 (3) available and appropriate counseling services 9-53 regarding AIDS and HIV infection. 9-54 Sec. 2.405. VIOLATION BY COUNTY CLERK; PENALTY. A county 9-55 clerk or deputy county clerk who violates this subchapter commits 9-56 an offense. An offense under this section is a misdemeanor 9-57 punishable by a fine of not less than $200 and not more than $500. 9-58 (Sections 2.406-2.500 reserved for expansion) 9-59 SUBCHAPTER F. RIGHTS AND DUTIES OF SPOUSES 9-60 Sec. 2.501. DUTY TO SUPPORT. (a) Each spouse has the duty 9-61 to support the other spouse. 9-62 (b) A spouse who fails to discharge the duty of support is 9-63 liable to any person who provides necessaries to the spouse to whom 9-64 support is owed. 9-65 SUBTITLE B. PROPERTY RIGHTS AND LIABILITIES 9-66 CHAPTER 3. MARITAL PROPERTY RIGHTS AND LIABILITIES 9-67 SUBCHAPTER A. GENERAL RULES FOR SEPARATE AND COMMUNITY PROPERTY 9-68 Sec. 3.001. SEPARATE PROPERTY. A spouse's separate property 9-69 consists of: 10-1 (1) the property owned or claimed by the spouse before 10-2 marriage; 10-3 (2) the property acquired by the spouse during 10-4 marriage by gift, devise, or descent; and 10-5 (3) the recovery for personal injuries sustained by 10-6 the spouse during marriage, except any recovery for loss of earning 10-7 capacity during marriage. 10-8 Sec. 3.002. COMMUNITY PROPERTY. Community property consists 10-9 of the property, other than separate property, acquired by either 10-10 spouse during marriage. 10-11 Sec. 3.003. PRESUMPTION OF COMMUNITY PROPERTY. 10-12 (a) Property possessed by either spouse during or on dissolution 10-13 of marriage is presumed to be community property. 10-14 (b) The degree of proof necessary to establish that property 10-15 is separate property is clear and convincing evidence. 10-16 Sec. 3.004. RECORDATION OF SEPARATE PROPERTY. (a) A 10-17 subscribed and acknowledged schedule of a spouse's separate 10-18 property may be recorded in the deed records of the county in which 10-19 the parties, or one of them, reside and in the county or counties 10-20 in which the real property is located. 10-21 (b) A schedule of a spouse's separate real property is not 10-22 constructive notice to a good faith purchaser for value or a 10-23 creditor without actual notice unless the instrument is 10-24 acknowledged and recorded in the deed records of the county in 10-25 which the real property is located. 10-26 Sec. 3.005. GIFTS BETWEEN SPOUSES. If one spouse makes a 10-27 gift of property to the other spouse, the gift is presumed to 10-28 include all the income and property that may arise from that 10-29 property. 10-30 (Sections 3.006-3.100 reserved for expansion) 10-31 SUBCHAPTER B. MANAGEMENT, CONTROL, AND DISPOSITION OF 10-32 MARITAL PROPERTY 10-33 Sec. 3.101. MANAGING SEPARATE PROPERTY. Each spouse has the 10-34 sole management, control, and disposition of that spouse's separate 10-35 property. 10-36 Sec. 3.102. MANAGING COMMUNITY PROPERTY. (a) During 10-37 marriage, each spouse has the sole management, control, and 10-38 disposition of the community property that the spouse would have 10-39 owned if single, including: 10-40 (1) personal earnings; 10-41 (2) revenue from separate property; 10-42 (3) recoveries for personal injuries; and 10-43 (4) the increase and mutations of, and the revenue 10-44 from, all property subject to the spouse's sole management, 10-45 control, and disposition. 10-46 (b) If community property subject to the sole management, 10-47 control, and disposition of one spouse is mixed or combined with 10-48 community property subject to the sole management, control, and 10-49 disposition of the other spouse, then the mixed or combined 10-50 community property is subject to the joint management, control, and 10-51 disposition of the spouses, unless the spouses provide otherwise by 10-52 power of attorney in writing or other agreement. 10-53 (c) Except as provided by Subsection (a), community property 10-54 is subject to the joint management, control, and disposition of the 10-55 spouses unless the spouses provide otherwise by power of attorney 10-56 in writing or other agreement. 10-57 Sec. 3.103. MANAGING EARNINGS OF MINOR. During the marriage 10-58 of the parents of an unemancipated minor for whom a managing 10-59 conservator has not been appointed, the earnings of the minor are 10-60 subject to the joint management, control, and disposition of the 10-61 parents of the minor, unless otherwise provided by agreement of the 10-62 parents or by judicial order. 10-63 Sec. 3.104. PROTECTION OF THIRD PERSONS. (a) During 10-64 marriage, property is presumed to be subject to the sole 10-65 management, control, and disposition of a spouse if it is held in 10-66 that spouse's name, as shown by muniment, contract, deposit of 10-67 funds, or other evidence of ownership, or if it is in that spouse's 10-68 possession and is not subject to such evidence of ownership. 10-69 (b) A third person dealing with a spouse is entitled to 11-1 rely, as against the other spouse or anyone claiming from that 11-2 spouse, on that spouse's authority to deal with the property if: 11-3 (1) the property is presumed to be subject to the sole 11-4 management, control, and disposition of the spouse; and 11-5 (2) the person dealing with the spouse: 11-6 (A) is not a party to a fraud on the other 11-7 spouse or another person; and 11-8 (B) does not have actual or constructive notice 11-9 of the spouse's lack of authority. 11-10 (Sections 3.105-3.200 reserved for expansion) 11-11 SUBCHAPTER C. MARITAL PROPERTY LIABILITIES 11-12 Sec. 3.201. SPOUSAL LIABILITY. (a) A person is personally 11-13 liable for the acts of the person's spouse only if: 11-14 (1) the spouse acts as an agent for the person; or 11-15 (2) the spouse incurs a debt for necessaries as 11-16 provided by Subchapter F, Chapter 2. 11-17 (b) Except as provided by this subchapter, community 11-18 property is not subject to a liability that arises from an act of a 11-19 spouse. 11-20 (c) A spouse does not act as an agent for the other spouse 11-21 solely because of the marriage relationship. 11-22 Sec. 3.202. RULES OF MARITAL PROPERTY LIABILITY. (a) A 11-23 spouse's separate property is not subject to liabilities of the 11-24 other spouse unless both spouses are liable by other rules of law. 11-25 (b) Unless both spouses are personally liable as provided by 11-26 this subchapter, the community property subject to a spouse's sole 11-27 management, control, and disposition is not subject to: 11-28 (1) any liabilities that the other spouse incurred 11-29 before marriage; or 11-30 (2) any nontortious liabilities that the other spouse 11-31 incurs during marriage. 11-32 (c) The community property subject to a spouse's sole or 11-33 joint management, control, and disposition is subject to the 11-34 liabilities incurred by the spouse before or during marriage. 11-35 (d) All community property is subject to tortious liability 11-36 of either spouse incurred during marriage. 11-37 Sec. 3.203. ORDER IN WHICH PROPERTY IS SUBJECT TO EXECUTION. 11-38 (a) A judge may determine, as deemed just and equitable, the order 11-39 in which particular separate or community property is subject to 11-40 execution and sale to satisfy a judgment, if the property subject 11-41 to liability for a judgment includes any combination of: 11-42 (1) a spouse's separate property; 11-43 (2) community property subject to a spouse's sole 11-44 management, control, and disposition; 11-45 (3) community property subject to the other spouse's 11-46 sole management, control, and disposition; and 11-47 (4) community property subject to the spouses' joint 11-48 management, control, and disposition. 11-49 (b) In determining the order in which particular property is 11-50 subject to execution and sale, the judge shall consider the facts 11-51 surrounding the transaction or occurrence on which the suit is 11-52 based. 11-53 (Sections 3.204-3.300 reserved for expansion) 11-54 SUBCHAPTER D. MANAGEMENT, CONTROL, AND DISPOSITION OF 11-55 MARITAL PROPERTY UNDER UNUSUAL CIRCUMSTANCES 11-56 Sec. 3.301. INCAPACITATED, MISSING, ABANDONED, OR SEPARATED 11-57 SPOUSE. (a) A spouse may file a sworn petition stating the facts 11-58 that make it desirable for the petitioning spouse to manage, 11-59 control, and dispose of community property described or defined in 11-60 the petition that would otherwise be subject to the sole or joint 11-61 management, control, and disposition of the other spouse if: 11-62 (1) because of physical or mental incapacity, the 11-63 other spouse is unable to manage, control, or dispose of the 11-64 community property subject to that spouse's sole or joint 11-65 management, control, and disposition; 11-66 (2) the other spouse has disappeared and that spouse's 11-67 location remains unknown to the petitioning spouse, unless the 11-68 spouse is reported to be a prisoner of war or missing on public 11-69 service; 12-1 (3) the other spouse has permanently abandoned the 12-2 petitioning spouse; or 12-3 (4) the spouses are permanently separated. 12-4 (b) The petition may be filed in a court in the county in 12-5 which the petitioner resided at the time the incapacity or 12-6 separation began, or the abandonment or disappearance occurred, not 12-7 earlier than the 60th day after the date of the occurrence of the 12-8 event. If both spouses are nonresidents of this state at the time 12-9 the petition is filed, the petition may be filed in a court in a 12-10 county in which any part of the described or defined community 12-11 property is located. 12-12 Sec. 3.302. SPOUSE MISSING ON PUBLIC SERVICE. (a) If a 12-13 spouse is reported by an executive department of the United States 12-14 to be a prisoner of war or missing on the public service of the 12-15 United States, the spouse of the prisoner of war or missing person 12-16 may file a sworn petition stating the facts that make it desirable 12-17 for the petitioner to manage, control, and dispose of the community 12-18 property described or defined in the petition that would otherwise 12-19 be subject to the sole or joint management, control, and 12-20 disposition of the imprisoned or missing spouse. 12-21 (b) The petition may be filed in a court in the county in 12-22 which the petitioner resided at the time the report was made not 12-23 earlier than six months after the date of the notice that a spouse 12-24 is reported to be a prisoner of war or missing on public service. 12-25 If both spouses were nonresidents of this state at the time the 12-26 report was made, the petition shall be filed in a court in a county 12-27 in which any part of the described or defined property is located. 12-28 Sec. 3.303. APPOINTMENT OF ATTORNEY. (a) Except as 12-29 provided by Subsection (b), the court may appoint an attorney in a 12-30 suit filed under this subchapter for the respondent. 12-31 (b) The court shall appoint an attorney in a suit filed 12-32 under this subchapter for a respondent reported to be a prisoner of 12-33 war or missing on public service. 12-34 (c) The court shall allow a reasonable fee for an appointed 12-35 attorney's services as a part of the costs of the suit. 12-36 Sec. 3.304. NOTICE OF HEARING; CITATION. (a) Notice of the 12-37 hearing, accompanied by a copy of the petition, shall be issued and 12-38 served on the attorney representing the respondent, if an attorney 12-39 has been appointed. 12-40 (b) If an attorney has not been appointed for the 12-41 respondent, citation shall be issued and served on the respondent 12-42 as in other civil cases. 12-43 Sec. 3.305. CITATION BY PUBLICATION. (a) If the residence 12-44 of the respondent, other than a respondent reported to be a 12-45 prisoner of war or missing on public service, is unknown, citation 12-46 shall be published in a newspaper of general circulation published 12-47 in the county in which the petition was filed. If that county has 12-48 no newspaper of general circulation, citation shall be published in 12-49 a newspaper of general circulation in an adjacent county or in the 12-50 nearest county in which a newspaper of general circulation is 12-51 published. 12-52 (b) The notice shall be published once a week for two 12-53 consecutive weeks before the hearing, but the first notice may not 12-54 be published after the 20th day before the date set for the 12-55 hearing. 12-56 Sec. 3.306. COURT ORDER FOR MANAGEMENT, CONTROL, AND 12-57 DISPOSITION OF COMMUNITY PROPERTY. (a) After hearing the evidence 12-58 in a suit under this subchapter, the court, on terms the court 12-59 considers just and equitable, shall render an order describing or 12-60 defining the community property at issue that will be subject to 12-61 the management, control, and disposition of each spouse during 12-62 marriage. 12-63 (b) The court may: 12-64 (1) impose any condition and restriction the court 12-65 deems necessary to protect the rights of the respondent; 12-66 (2) require a bond conditioned on the faithful 12-67 administration of the property; and 12-68 (3) require payment to the registry of the court of 12-69 all or a portion of the proceeds of the sale of the property, to be 13-1 disbursed in accordance with the court's further directions. 13-2 Sec. 3.307. CONTINUING JURISDICTION OF COURT; VACATING 13-3 ORIGINAL ORDER. (a) The court has continuing jurisdiction over 13-4 the court's order rendered under this subchapter. 13-5 (b) On the motion of either spouse, the court shall amend or 13-6 vacate the original order after notice and hearing if: 13-7 (1) the incapacitated spouse's capacity is restored; 13-8 (2) the spouse who disappeared reappears; 13-9 (3) the abandonment or permanent separation ends; or 13-10 (4) the spouse who was reported to be a prisoner of 13-11 war or missing on public service returns. 13-12 Sec. 3.308. RECORDING ORDER TO AFFECT REAL PROPERTY. An 13-13 order authorized by this subchapter affecting real property is not 13-14 constructive notice to a good faith purchaser for value or to a 13-15 creditor without actual notice unless the order is recorded in the 13-16 deed records of the county in which the real property is located. 13-17 Sec. 3.309. REMEDIES CUMULATIVE. The remedies provided in 13-18 this subchapter are cumulative of other rights, powers, and 13-19 remedies afforded spouses by law. 13-20 CHAPTER 4. PREMARITAL AND MARITAL PROPERTY AGREEMENTS 13-21 SUBCHAPTER A. UNIFORM PREMARITAL AGREEMENT ACT 13-22 Sec. 4.001. DEFINITIONS. In this subchapter: 13-23 (1) "Premarital agreement" means an agreement between 13-24 prospective spouses made in contemplation of marriage and to be 13-25 effective on marriage. 13-26 (2) "Property" means an interest, present or future, 13-27 legal or equitable, vested or contingent, in real or personal 13-28 property, including income and earnings. 13-29 Sec. 4.002. Formalities. A premarital agreement must be in 13-30 writing and signed by both parties. The agreement is enforceable 13-31 without consideration. 13-32 Sec. 4.003. Content. (a) The parties to a premarital 13-33 agreement may contract with respect to: 13-34 (1) the rights and obligations of each of the parties 13-35 in any of the property of either or both of them whenever and 13-36 wherever acquired or located; 13-37 (2) the right to buy, sell, use, transfer, exchange, 13-38 abandon, lease, consume, expend, assign, create a security interest 13-39 in, mortgage, encumber, dispose of, or otherwise manage and control 13-40 property; 13-41 (3) the disposition of property on separation, marital 13-42 dissolution, death, or the occurrence or nonoccurrence of any other 13-43 event; 13-44 (4) the modification or elimination of spousal 13-45 support; 13-46 (5) the making of a will, trust, or other arrangement 13-47 to carry out the provisions of the agreement; 13-48 (6) the ownership rights in and disposition of the 13-49 death benefit from a life insurance policy; 13-50 (7) the choice of law governing the construction of 13-51 the agreement; and 13-52 (8) any other matter, including their personal rights 13-53 and obligations, not in violation of public policy or a statute 13-54 imposing a criminal penalty. 13-55 (b) The right of a child to support may not be adversely 13-56 affected by a premarital agreement. 13-57 Sec. 4.004. Effect of Marriage. A premarital agreement 13-58 becomes effective on marriage. 13-59 Sec. 4.005. Amendment Or Revocation. After marriage, a 13-60 premarital agreement may be amended or revoked only by a written 13-61 agreement signed by the parties. The amended agreement or the 13-62 revocation is enforceable without consideration. 13-63 Sec. 4.006. Enforcement. (a) A premarital agreement is not 13-64 enforceable if the party against whom enforcement is requested 13-65 proves that: 13-66 (1) the party did not sign the agreement voluntarily; 13-67 or 13-68 (2) the agreement was unconscionable when it was 13-69 signed and, before signing the agreement, that party: 14-1 (A) was not provided a fair and reasonable 14-2 disclosure of the property or financial obligations of the other 14-3 party; 14-4 (B) did not voluntarily and expressly waive, in 14-5 writing, any right to disclosure of the property or financial 14-6 obligations of the other party beyond the disclosure provided; and 14-7 (C) did not have, or reasonably could not have 14-8 had, adequate knowledge of the property or financial obligations of 14-9 the other party. 14-10 (b) An issue of unconscionability of a premarital agreement 14-11 shall be decided by the court as a matter of law. 14-12 (c) The remedies and defenses in this section are the 14-13 exclusive remedies or defenses, including common law remedies or 14-14 defenses. 14-15 Sec. 4.007. Enforcement: Void Marriage. If a marriage is 14-16 determined to be void, an agreement that would otherwise have been 14-17 a premarital agreement is enforceable only to the extent necessary 14-18 to avoid an inequitable result. 14-19 Sec. 4.008. Limitation of Actions. A statute of limitations 14-20 applicable to an action asserting a claim for relief under a 14-21 premarital agreement is tolled during the marriage of the parties 14-22 to the agreement. However, equitable defenses limiting the time 14-23 for enforcement, including laches and estoppel, are available to 14-24 either party. 14-25 Sec. 4.009. Application and Construction. This subchapter 14-26 shall be applied and construed to effect its general purpose to 14-27 make uniform the law with respect to the subject of this subchapter 14-28 among states enacting these provisions. 14-29 Sec. 4.010. Short Title. This subchapter may be cited as 14-30 the Uniform Premarital Agreement Act. 14-31 (Sections 4.011-4.100 reserved for expansion) 14-32 SUBCHAPTER B. MARITAL PROPERTY AGREEMENT 14-33 Sec. 4.101. DEFINITION. In this subchapter, "property" has 14-34 the meaning assigned by Section 4.001. 14-35 Sec. 4.102. Partition or Exchange of Community Property. At 14-36 any time, the spouses may partition or exchange between themselves 14-37 any part of their community property, then existing or to be 14-38 acquired, as the spouses may desire. Property or a property 14-39 interest transferred to a spouse by a partition or exchange 14-40 agreement becomes that spouse's separate property. 14-41 Sec. 4.103. Agreement Between Spouses Concerning Income or 14-42 Property From Separate Property. At any time, the spouses may 14-43 agree that the income or property arising from the separate 14-44 property that is then owned by one of them, or that may thereafter 14-45 be acquired, shall be the separate property of the owner. 14-46 Sec. 4.104. Formalities. A partition or exchange agreement 14-47 must be in writing and signed by both parties. 14-48 Sec. 4.105. Enforcement. (a) A partition or exchange 14-49 agreement is not enforceable if the party against whom enforcement 14-50 is requested proves that: 14-51 (1) the party did not sign the agreement voluntarily; 14-52 or 14-53 (2) the agreement was unconscionable when it was 14-54 signed and, before execution of the agreement, that party: 14-55 (A) was not provided a fair and reasonable 14-56 disclosure of the property or financial obligations of the other 14-57 party; 14-58 (B) did not voluntarily and expressly waive, in 14-59 writing, any right to disclosure of the property or financial 14-60 obligations of the other party beyond the disclosure provided; and 14-61 (C) did not have, or reasonably could not have 14-62 had, adequate knowledge of the property or financial obligations of 14-63 the other party. 14-64 (b) An issue of unconscionability of a partition or exchange 14-65 agreement shall be decided by the court as a matter of law. 14-66 (c) The remedies and defenses in this section are the 14-67 exclusive remedies or defenses, including common law remedies or 14-68 defenses. 14-69 Sec. 4.106. RIGHTS OF CREDITORS AND RECORDATION UNDER 15-1 PARTITION OR EXCHANGE AGREEMENT. (a) A provision of a partition 15-2 or exchange agreement made under this subchapter is void with 15-3 respect to the rights of a preexisting creditor whose rights are 15-4 intended to be defrauded by it. 15-5 (b) A partition or exchange agreement made under this 15-6 subchapter may be recorded in the deed records of the county in 15-7 which a party resides and in the county in which the real property 15-8 affected is located. An agreement made under this subchapter is 15-9 constructive notice to a good faith purchaser for value or a 15-10 creditor without actual notice only if the instrument is 15-11 acknowledged and recorded in the county in which the real property 15-12 is located. 15-13 CHAPTER 5. HOMESTEAD RIGHTS 15-14 SUBCHAPTER A. SALE OF HOMESTEAD; GENERAL RULE 15-15 Sec. 5.001. SALE, CONVEYANCE, OR ENCUMBRANCE OF HOMESTEAD. 15-16 Whether the homestead is the separate property of either spouse or 15-17 community property, neither spouse may sell, convey, or encumber 15-18 the homestead without the joinder of the other spouse except as 15-19 provided in this chapter or by other rules of law. 15-20 Sec. 5.002. SALE OF HOMESTEAD FOR INCAPACITATED SPOUSE. If 15-21 the homestead is the separate property of a spouse and the other 15-22 spouse has been judicially declared incapacitated, the owner may 15-23 sell, convey, or encumber the homestead without the joinder of the 15-24 other spouse. 15-25 (Sections 5.003-5.100 reserved for expansion) 15-26 SUBCHAPTER B. SALE OF HOMESTEAD UNDER UNUSUAL CIRCUMSTANCES 15-27 Sec. 5.101. SALE OF SEPARATE HOMESTEAD UNDER UNUSUAL 15-28 CIRCUMSTANCES. If the homestead is the separate property of a 15-29 spouse, that spouse may file a sworn petition that gives a 15-30 description of the property, states the facts that make it 15-31 desirable for the spouse to sell, convey, or encumber the homestead 15-32 without the joinder of the other spouse, and alleges that the other 15-33 spouse: 15-34 (1) is incapacitated, whether judicially declared 15-35 incapacitated or not; 15-36 (2) has disappeared and that the location of the 15-37 spouse remains unknown to the petitioning spouse; 15-38 (3) has permanently abandoned the homestead and the 15-39 petitioning spouse; 15-40 (4) has permanently abandoned the homestead and the 15-41 spouses are permanently separated; or 15-42 (5) has been reported by an executive department of 15-43 the United States to be a prisoner of war or missing on public 15-44 service of the United States. 15-45 Sec. 5.102. SALE OF COMMUNITY HOMESTEAD UNDER UNUSUAL 15-46 CIRCUMSTANCES. If the homestead is the community property of the 15-47 spouses, one spouse may file a sworn petition that gives a 15-48 description of the property, states the facts that make it 15-49 desirable for the petitioning spouse to sell, convey, or encumber 15-50 the homestead without the joinder of the other spouse, and alleges 15-51 that the other spouse: 15-52 (1) is incapacitated, whether judicially declared 15-53 incapacitated or not; 15-54 (2) has disappeared and that the location of the 15-55 spouse remains unknown to the petitioning spouse; 15-56 (3) has permanently abandoned the homestead and the 15-57 petitioning spouse; 15-58 (4) has permanently abandoned the homestead and the 15-59 spouses are permanently separated; or 15-60 (5) has been reported by an executive department of 15-61 the United States to be a prisoner of war or missing on public 15-62 service of the United States. 15-63 Sec. 5.103. TIME FOR FILING PETITION. The petitioning 15-64 spouse may file the petition in a court of the county in which any 15-65 portion of the property is located not earlier than the 60th day 15-66 after the date of the occurrence of an event described by Sections 15-67 5.101(1)-(4) and 5.102(1)-(4) or not less than six months after the 15-68 date the other spouse has been reported to be a prisoner of war or 15-69 missing on public service. 16-1 Sec. 5.104. APPOINTMENT OF ATTORNEY. (a) Except as 16-2 provided by Subsection (b), the court may appoint an attorney in a 16-3 suit filed under this subchapter for the respondent. 16-4 (b) The court shall appoint an attorney in a suit filed 16-5 under this subchapter for a respondent reported to be a prisoner of 16-6 war or missing on public service. 16-7 (c) The court shall allow a reasonable fee for the appointed 16-8 attorney's services as a part of the costs of the suit. 16-9 Sec. 5.105. CITATION; NOTICE OF HEARING. Citation and 16-10 notice of hearing for a suit filed as provided by this subchapter 16-11 shall be issued and served in the manner provided in Subchapter D, 16-12 Chapter 3. 16-13 Sec. 5.106. COURT ORDER. (a) After notice and hearing, the 16-14 court shall render an order the court deems just and equitable with 16-15 respect to the sale, conveyance, or encumbrance of a separate 16-16 property homestead. 16-17 (b) After hearing the evidence, the court, on terms the 16-18 court deems just and equitable, shall render an order describing or 16-19 defining the community property at issue that will be subject to 16-20 the management, control, and disposition of each spouse during 16-21 marriage. 16-22 (c) The court may: 16-23 (1) impose any conditions and restrictions the court 16-24 deems necessary to protect the rights of the respondent; 16-25 (2) require a bond conditioned on the faithful 16-26 administration of the property; and 16-27 (3) require payment to the registry of the court of 16-28 all or a portion of the proceeds of the sale of the property to be 16-29 disbursed in accordance with the court's further directions. 16-30 Sec. 5.107. SALE OF COMMUNITY HOMESTEAD FOR SPOUSE 16-31 JUDICIALLY DECLARED INCAPACITATED. If the homestead is the 16-32 community property of the spouses and one spouse has been 16-33 judicially declared incapacitated, the competent spouse may sell, 16-34 convey, or encumber the homestead without the joinder of the other 16-35 spouse. 16-36 Sec. 5.108. REMEDIES AND POWERS CUMULATIVE. The remedies 16-37 and the powers of a spouse provided by this subchapter are 16-38 cumulative of the other rights, powers, and remedies afforded the 16-39 spouses by law. 16-40 SUBTITLE C. DISSOLUTION OF MARRIAGE 16-41 CHAPTER 6. SUIT FOR DISSOLUTION OF MARRIAGE 16-42 SUBCHAPTER A. GROUNDS FOR DIVORCE AND DEFENSES 16-43 Sec. 6.001. INSUPPORTABILITY. On the petition of either 16-44 party to a marriage, the court may grant a divorce without regard 16-45 to fault if the marriage has become insupportable because of 16-46 discord or conflict of personalities that destroys the legitimate 16-47 ends of the marital relationship and prevents any reasonable 16-48 expectation of reconciliation. 16-49 Sec. 6.002. CRUELTY. The court may grant a divorce in favor 16-50 of one spouse if the other spouse is guilty of cruel treatment 16-51 toward the complaining spouse of a nature that renders further 16-52 living together insupportable. 16-53 Sec. 6.003. ADULTERY. The court may grant a divorce in 16-54 favor of one spouse if the other spouse has committed adultery. 16-55 Sec. 6.004. CONVICTION OF FELONY. (a) The court may grant 16-56 a divorce in favor of one spouse if during the marriage the other 16-57 spouse: 16-58 (1) has been convicted of a felony; 16-59 (2) has been imprisoned for at least one year in the 16-60 state penitentiary, a federal penitentiary, or the penitentiary of 16-61 another state; and 16-62 (3) has not been pardoned. 16-63 (b) The court may not grant a divorce under this section 16-64 against a spouse who was convicted on the testimony of the other 16-65 spouse. 16-66 Sec. 6.005. ABANDONMENT. The court may grant a divorce in 16-67 favor of one spouse if the other spouse: 16-68 (1) left the complaining spouse with the intention of 16-69 abandonment; and 17-1 (2) remained away for at least one year. 17-2 Sec. 6.006. LIVING APART. The court may grant a divorce in 17-3 favor of either spouse if the spouses have lived apart without 17-4 cohabitation for at least three years. 17-5 Sec. 6.007. CONFINEMENT IN MENTAL HOSPITAL. The court may 17-6 grant a divorce in favor of one spouse if at the time the suit is 17-7 filed: 17-8 (1) the other spouse has been confined in a state 17-9 mental hospital or private mental hospital, as defined in Section 17-10 571.003, Health and Safety Code, in this state or another state for 17-11 at least three years; and 17-12 (2) it appears that the hospitalized spouse's mental 17-13 disorder is of such a degree and nature that adjustment is unlikely 17-14 or that, if adjustment occurs, a relapse is probable. 17-15 Sec. 6.008. DEFENSES. (a) The defenses to a suit for 17-16 divorce of recrimination and adultery are abolished. 17-17 (b) Condonation is a defense to a suit for divorce only if 17-18 the court finds that there is a reasonable expectation of 17-19 reconciliation. 17-20 (Sections 6.009-6.100 reserved for expansion) 17-21 SUBCHAPTER B. GROUNDS FOR ANNULMENT 17-22 Sec. 6.101. ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 14. 17-23 (a) The court may grant an annulment of a licensed or informal 17-24 marriage of a person under 14 years of age unless a court order has 17-25 been obtained as provided in Subchapter B, Chapter 2. 17-26 (b) A petition for annulment under this section may be filed 17-27 by a next friend for the benefit of a person under 14 years of age 17-28 or on the petition of the parent or the judicially designated 17-29 managing conservator or guardian, whether an individual, authorized 17-30 agency, or court, of the person. 17-31 (c) A suit by a parent, managing conservator, or guardian of 17-32 the person may be brought at any time before the person is 14 years 17-33 of age. 17-34 (d) A suit under this section to annul the marriage of a 17-35 person 14 years of age or older that was entered into before the 17-36 person was 14 years of age is barred unless the suit is filed 17-37 within the later of: 17-38 (1) 90 days after the date the petitioner knew or 17-39 should have known of the marriage; or 17-40 (2) 90 days after the date of the 14th birthday of the 17-41 underage party. 17-42 Sec. 6.102. ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 18. 17-43 (a) The court may grant an annulment of a licensed or informal 17-44 marriage of a person 14 years of age or older but under 18 years of 17-45 age that occurred without parental consent or without a court order 17-46 as provided by Subchapters B and E, Chapter 2. 17-47 (b) A petition for annulment under this section may be filed 17-48 by: 17-49 (1) a next friend for the benefit of the underage 17-50 party; 17-51 (2) a parent; or 17-52 (3) the judicially designated managing conservator or 17-53 guardian of the person of the underage party, whether an 17-54 individual, authorized agency, or court. 17-55 (c) A suit filed under this subsection by a next friend is 17-56 barred unless it is filed within 90 days after the date of the 17-57 marriage. 17-58 Sec. 6.103. UNDERAGE ANNULMENT BARRED BY ADULTHOOD. A suit 17-59 to annul a marriage may not be filed under Section 6.101 or 6.102 17-60 by a parent, managing conservator, or guardian of a person after 17-61 the 18th birthday of the person. 17-62 Sec. 6.104. DISCRETIONARY ANNULMENT OF UNDERAGE MARRIAGE. 17-63 (a) An annulment under Section 6.101 or 6.102 of a marriage may be 17-64 granted at the discretion of the court sitting without a jury. 17-65 (b) In exercising its discretion, the court shall consider 17-66 the pertinent facts concerning the welfare of the parties to the 17-67 marriage, including whether the female is pregnant. 17-68 Sec. 6.105. UNDER INFLUENCE OF ALCOHOL OR NARCOTICS. The 17-69 court may grant an annulment of a marriage to a party to the 18-1 marriage if: 18-2 (1) at the time of the marriage the petitioner was 18-3 under the influence of alcoholic beverages or narcotics and as a 18-4 result did not have the capacity to consent to the marriage; and 18-5 (2) the petitioner has not voluntarily cohabited with 18-6 the other party to the marriage since the effects of the alcoholic 18-7 beverages or narcotics ended. 18-8 Sec. 6.106. IMPOTENCY. The court may grant an annulment of 18-9 a marriage to a party to the marriage if: 18-10 (1) either party, for physical or mental reasons, was 18-11 permanently impotent at the time of the marriage; 18-12 (2) the petitioner did not know of the impotency at 18-13 the time of the marriage; and 18-14 (3) the petitioner has not voluntarily cohabited with 18-15 the other party since learning of the impotency. 18-16 Sec. 6.107. FRAUD, DURESS, OR FORCE. The court may grant an 18-17 annulment of a marriage to a party to the marriage if: 18-18 (1) the other party used fraud, duress, or force to 18-19 induce the petitioner to enter into the marriage; and 18-20 (2) the petitioner has not voluntarily cohabited with 18-21 the other party since learning of the fraud or since being released 18-22 from the duress or force. 18-23 Sec. 6.108. MENTAL INCAPACITY. (a) The court may grant an 18-24 annulment of a marriage to a party to the marriage on the suit of 18-25 the party or the party's guardian or next friend, if the court 18-26 finds it to be in the party's best interest to be represented by a 18-27 guardian or next friend, if: 18-28 (1) at the time of the marriage the petitioner did not 18-29 have the mental capacity to consent to marriage or to understand 18-30 the nature of the marriage ceremony because of a mental disease or 18-31 defect; and 18-32 (2) since the marriage ceremony, the petitioner has 18-33 not voluntarily cohabited with the other party during a period when 18-34 the petitioner possessed the mental capacity to recognize the 18-35 marriage relationship. 18-36 (b) The court may grant an annulment of a marriage to a 18-37 party to the marriage if: 18-38 (1) at the time of the marriage the other party did 18-39 not have the mental capacity to consent to marriage or to 18-40 understand the nature of the marriage ceremony because of a mental 18-41 disease or defect; 18-42 (2) at the time of the marriage the petitioner neither 18-43 knew nor reasonably should have known of the mental disease or 18-44 defect; and 18-45 (3) since the date the petitioner discovered or 18-46 reasonably should have discovered the mental disease or defect, the 18-47 petitioner has not voluntarily cohabited with the other party. 18-48 Sec. 6.109. CONCEALED DIVORCE. (a) The court may grant an 18-49 annulment of a marriage to a party to the marriage if: 18-50 (1) the other party was divorced from a third party 18-51 within the 30-day period preceding the date of the marriage 18-52 ceremony; 18-53 (2) at the time of the marriage ceremony the 18-54 petitioner did not know, and a reasonably prudent person would not 18-55 have known, of the divorce; and 18-56 (3) since the petitioner discovered or a reasonably 18-57 prudent person would have discovered the fact of the divorce, the 18-58 petitioner has not voluntarily cohabited with the other party. 18-59 (b) A suit may not be brought under this section after the 18-60 first anniversary of the date of the marriage. 18-61 Sec. 6.110. MARRIAGE LESS THAN 72 HOURS AFTER ISSUANCE OF 18-62 LICENSE. (a) The court may grant an annulment of a marriage to a 18-63 party to the marriage if the marriage ceremony took place in 18-64 violation of Section 2.204 during the 72-hour period immediately 18-65 following the issuance of the marriage license. 18-66 (b) A suit may not be brought under this section after the 18-67 30th day after the date of the marriage. 18-68 Sec. 6.111. DEATH OF PARTY TO VOIDABLE MARRIAGE. A marriage 18-69 subject to annulment may not be challenged in a proceeding 19-1 instituted after the death of either party to the marriage. 19-2 (Sections 6.112-6.200 reserved for expansion) 19-3 SUBCHAPTER C. DECLARING A MARRIAGE VOID 19-4 Sec. 6.201. CONSANGUINITY. A marriage is void if one party 19-5 to the marriage is related to the other as: 19-6 (1) an ancestor or descendant, by blood or adoption; 19-7 (2) a brother or sister, of the whole or half blood or 19-8 by adoption; 19-9 (3) a parent's brother or sister, of the whole or half 19-10 blood or by adoption; or 19-11 (4) a son or daughter of a brother or sister, of the 19-12 whole or half blood or by adoption. 19-13 Sec. 6.202. MARRIAGE DURING EXISTENCE OF PRIOR MARRIAGE. 19-14 (a) A marriage is void if entered into when either party has an 19-15 existing marriage to another person that has not been dissolved by 19-16 legal action or terminated by the death of the other spouse. 19-17 (b) The later marriage that is void under this section 19-18 becomes valid when the prior marriage is dissolved if, after the 19-19 date of the dissolution, the parties have lived together as husband 19-20 and wife and represented themselves to others as being married. 19-21 Sec. 6.203. CERTAIN VOID MARRIAGES VALIDATED. Except for a 19-22 marriage that would have been void under Section 6.201, a marriage 19-23 that was entered into before January 1, 1970, in violation of the 19-24 prohibitions of Article 496, Penal Code of Texas, 1925, is 19-25 validated from the date the marriage commenced if the parties 19-26 continued until January 1, 1970, to live together as husband and 19-27 wife and to represent themselves to others as being married. 19-28 (Sections 6.204-6.300 reserved for expansion) 19-29 SUBCHAPTER D. JURISDICTION, VENUE, AND RESIDENCE QUALIFICATIONS 19-30 Sec. 6.301. GENERAL RESIDENCY RULE FOR DIVORCE SUIT. A suit 19-31 for divorce may not be maintained in this state unless at the time 19-32 the suit is filed either the petitioner or the respondent has been: 19-33 (1) a domiciliary of this state for the preceding 19-34 six-month period; and 19-35 (2) a resident of the county in which the suit is 19-36 filed for the preceding 90-day period. 19-37 Sec. 6.302. SUIT FOR DIVORCE BY NONRESIDENT SPOUSE. If one 19-38 spouse has been a domiciliary of this state for at least the last 19-39 six months, a spouse domiciled in another state or nation may file 19-40 a suit for divorce in the county in which the domiciliary spouse 19-41 resides at the time the petition is filed. 19-42 Sec. 6.303. ABSENCE ON PUBLIC SERVICE. Time spent by a 19-43 Texas domiciliary outside this state or outside the county of 19-44 residence of the domiciliary while in the service of the armed 19-45 forces or other service of the United States or of this state is 19-46 considered residence in this state and in that county. 19-47 Sec. 6.304. ARMED FORCES PERSONNEL NOT PREVIOUSLY RESIDENTS. 19-48 A person not previously a resident of this state who is serving in 19-49 the armed forces of the United States and has been stationed at one 19-50 or more military installations in this state for at least the last 19-51 six months and at a military installation in a county of this state 19-52 for at least the last 90 days is considered to be a Texas 19-53 domiciliary and a resident of that county for those periods for the 19-54 purpose of filing suit for dissolution of a marriage. 19-55 Sec. 6.305. ACQUIRING JURISDICTION OVER NONRESIDENT 19-56 RESPONDENT. (a) If the petitioner in a suit for dissolution of a 19-57 marriage is a resident or a domiciliary of this state at the time 19-58 the suit for dissolution is filed, the court may exercise personal 19-59 jurisdiction over the respondent or over the respondent's personal 19-60 representative although the respondent is not a resident of this 19-61 state if: 19-62 (1) this state is the last marital residence of the 19-63 petitioner and the respondent and the suit is filed before the 19-64 second anniversary of the date on which marital residence ended; or 19-65 (2) there is any basis consistent with the 19-66 constitutions of this state and the United States for the exercise 19-67 of the personal jurisdiction. 19-68 (b) A court acquiring jurisdiction under this section also 19-69 acquires jurisdiction over the respondent in a suit affecting the 20-1 parent-child relationship. 20-2 Sec. 6.306. JURISDICTION TO ANNUL MARRIAGE. (a) A suit for 20-3 annulment of a marriage may be maintained in this state only if the 20-4 parties were married in this state or if either party is domiciled 20-5 in this state. 20-6 (b) A suit for annulment is a suit in rem, affecting the 20-7 status of the parties to the marriage. 20-8 Sec. 6.307. JURISDICTION TO DECLARE MARRIAGE VOID. 20-9 (a) Either party to a marriage made void by this chapter may sue 20-10 to have the marriage declared void, or the court may declare the 20-11 marriage void in a collateral proceeding. 20-12 (b) The court may declare a marriage void only if: 20-13 (1) the purported marriage was contracted in this 20-14 state; or 20-15 (2) either party is domiciled in this state. 20-16 (c) A suit to have a marriage declared void is a suit in 20-17 rem, affecting the status of the parties to the purported marriage. 20-18 Sec. 6.308. EXERCISING PARTIAL JURISDICTION. (a) A court 20-19 in which a suit for dissolution of a marriage is filed may exercise 20-20 its jurisdiction over those portions of the suit for which it has 20-21 authority. 20-22 (b) The court's authority to resolve the issues in 20-23 controversy between the parties may be restricted because the court 20-24 lacks: 20-25 (1) the required personal jurisdiction over a 20-26 nonresident party in a suit for dissolution of the marriage; 20-27 (2) the required jurisdiction under Chapter 152; or 20-28 (3) the required jurisdiction under Chapter 159. 20-29 (Sections 6.309-6.400 reserved for expansion) 20-30 SUBCHAPTER E. FILING SUIT 20-31 Sec. 6.401. CAPTION. (a) Pleadings in a suit for divorce 20-32 or annulment shall be styled "In the Matter of the Marriage 20-33 of ________ and ________." 20-34 (b) Pleadings in a suit to declare a marriage void shall be 20-35 styled "A Suit To Declare Void the Marriage 20-36 of __________ and __________." 20-37 Sec. 6.402. PLEADINGS. (a) A petition in a suit for 20-38 dissolution of a marriage is sufficient without the necessity of 20-39 specifying the underlying evidentiary facts if the petition alleges 20-40 the grounds relied on substantially in the language of the statute. 20-41 (b) Allegations of grounds for relief, matters of defense, 20-42 or facts relied on for a temporary order that are stated in short 20-43 and plain terms are not subject to special exceptions because of 20-44 form or sufficiency. 20-45 (c) The court shall strike an allegation of evidentiary fact 20-46 from the pleadings on the motion of a party or on the court's own 20-47 motion. 20-48 Sec. 6.403. ANSWER. The respondent in a suit for 20-49 dissolution of a marriage is not required to answer on oath or 20-50 affirmation. 20-51 Sec. 6.404. STATEMENT ON ALTERNATE DISPUTE RESOLUTION. 20-52 (a) A party to a proceeding under this title shall include in the 20-53 first pleading filed by the party in the proceeding the following 20-54 statement: 20-55 "I AM AWARE THAT IT IS THE POLICY OF THE STATE OF TEXAS TO 20-56 PROMOTE THE AMICABLE AND NONJUDICIAL SETTLEMENT OF DISPUTES 20-57 INVOLVING CHILDREN AND FAMILIES. I AM AWARE OF ALTERNATIVE DISPUTE 20-58 RESOLUTION METHODS, INCLUDING MEDIATION. WHILE I RECOGNIZE THAT 20-59 ALTERNATIVE DISPUTE RESOLUTION IS AN ALTERNATIVE TO AND NOT A 20-60 SUBSTITUTE FOR A TRIAL AND THAT THIS CASE MAY BE TRIED IF IT IS NOT 20-61 SETTLED, I REPRESENT TO THE COURT THAT I WILL ATTEMPT IN GOOD FAITH 20-62 TO RESOLVE CONTESTED ISSUES IN THIS CASE BY ALTERNATIVE DISPUTE 20-63 RESOLUTION WITHOUT THE NECESSITY OF COURT INTERVENTION." 20-64 (b) The statement prescribed by Subsection (a) must be 20-65 printed in boldfaced type or capital letters and signed by the 20-66 party. 20-67 (c) The statement prescribed by Subsection (a) is not 20-68 required for: 20-69 (1) a pleading in which citation on all respondents 21-1 entitled to service of citation is requested, issued, and given by 21-2 publication; 21-3 (2) a motion or pleading that seeks a protective order 21-4 as provided by Chapter 71; or 21-5 (3) a special appearance under Rule 120a, Texas Rules 21-6 of Civil Procedure. 21-7 Sec. 6.405. PROTECTIVE ORDER. (a) The petition in a suit 21-8 for dissolution of a marriage must state whether a protective order 21-9 under Chapter 71 is in effect or if an application for a protective 21-10 order is pending with regard to the parties to the suit. 21-11 (b) The petitioner shall attach to the petition a copy of 21-12 each protective order issued under Chapter 71 in which one of the 21-13 parties to the suit was the applicant and the other party was the 21-14 respondent without regard to the date of the order. If a copy of 21-15 the protective order is not available at the time of filing, the 21-16 petition must state that a copy of the order will be filed with the 21-17 court before any hearing. 21-18 Sec. 6.406. MANDATORY JOINDER OF SUIT AFFECTING PARENT-CHILD 21-19 RELATIONSHIP. (a) The petition in a suit for dissolution of a 21-20 marriage shall state whether there are children born or adopted of 21-21 the marriage who are under 18 years of age or who are otherwise 21-22 entitled to support as provided by Chapter 154. 21-23 (b) If the parties are parents of a child, as defined by 21-24 Section 101.003, and the child is not under the continuing 21-25 jurisdiction of another court as provided by Chapter 155, the suit 21-26 for dissolution of a marriage must include a suit affecting the 21-27 parent-child relationship under Title 5. 21-28 Sec. 6.407. TRANSFER OF SUIT AFFECTING PARENT-CHILD 21-29 RELATIONSHIP TO DIVORCE COURT. (a) If a suit affecting the 21-30 parent-child relationship is pending at the time the suit for 21-31 dissolution of a marriage is filed, the suit affecting the 21-32 parent-child relationship shall be transferred as provided by 21-33 Section 103.002 to the court in which the suit for dissolution is 21-34 filed. 21-35 (b) If the parties are parents of a child, as defined by 21-36 Section 101.003, and the child is under the continuing jurisdiction 21-37 of another court under Chapter 155, either party to the suit for 21-38 dissolution of a marriage may move that court for transfer of the 21-39 suit affecting the parent-child relationship to the court having 21-40 jurisdiction of the suit for dissolution. The court with 21-41 continuing jurisdiction shall transfer the proceeding as provided 21-42 by Chapter 155. On the transfer of the proceedings, the court with 21-43 jurisdiction of the suit for dissolution of a marriage shall 21-44 consolidate the two causes of action. 21-45 (c) After transfer of a suit affecting the parent-child 21-46 relationship as provided in Chapter 155, the court with 21-47 jurisdiction of the suit for dissolution of a marriage has 21-48 jurisdiction to render an order in the suit affecting the 21-49 parent-child relationship as provided by Title 5. 21-50 Sec. 6.408. SERVICE OF CITATION. Citation on the filing of 21-51 an original petition in a suit for dissolution of a marriage shall 21-52 be issued and served as in other civil cases. Citation may also be 21-53 served on any other person who has or who may assert an interest in 21-54 the suit for dissolution of the marriage. 21-55 Sec. 6.409. CITATION BY PUBLICATION. (a) Citation in a 21-56 suit for dissolution of a marriage may be by publication as in 21-57 other civil cases, except that notice shall be published one time 21-58 only. 21-59 (b) The notice shall be sufficient if given in substantially 21-60 the following form: 21-61 "STATE OF TEXAS 21-62 To (name of person to be served with citation), and to all whom it 21-63 may concern (if the name of any person to be served with citation 21-64 is unknown), Respondent(s), 21-65 "You have been sued. You may employ an attorney. If you or 21-66 your attorney do not file a written answer with the clerk who 21-67 issued this citation by 10 a.m. on the Monday next following the 21-68 expiration of 20 days after you were served this citation and 21-69 petition, a default judgment may be taken against you. The 22-1 petition of ____, Petitioner, was filed in the Court 22-2 of ____ County, Texas, on the ___ day of ____, against ____, 22-3 Respondent(s), numbered ______, and entitled 'In the Matter of 22-4 Marriage of ____ and ____. The suit requests ____ (statement of 22-5 relief sought).' 22-6 "The Court has authority in this suit to enter any judgment 22-7 or decree dissolving the marriage and providing for the division of 22-8 property that will be binding on you. 22-9 "Issued and given under my hand and seal of said Court 22-10 at ____, Texas, this 22-11 the ___ day of ____, ____. 22-12 "............................... 22-13 Clerk of the _________ Court of 22-14 _________________ County, Texas 22-15 By _______, Deputy." 22-16 (c) The form authorized in this section and the form 22-17 authorized by Section 102.010 may be combined in appropriate 22-18 situations. 22-19 (d) If the citation is for a suit in which a parent-child 22-20 relationship does not exist, service by publication may be 22-21 completed by posting the citation at the courthouse door for seven 22-22 days in the county in which the suit is filed. 22-23 (e) If the petitioner or the petitioner's attorney of record 22-24 makes an oath that no child presently under 18 years of age was 22-25 born or adopted by the spouses and that no appreciable amount of 22-26 property was accumulated by the spouses during the marriage, the 22-27 court may dispense with the appointment of an attorney ad litem. 22-28 In a case in which citation was by publication, a statement of the 22-29 evidence, approved and signed by the judge, shall be filed with the 22-30 papers of the suit as a part of the record. 22-31 (Sections 6.410-6.500 reserved for expansion) 22-32 SUBCHAPTER F. TEMPORARY ORDERS 22-33 Sec. 6.501. TEMPORARY RESTRAINING ORDER. (a) After the 22-34 filing of a suit for dissolution of a marriage, on the motion of a 22-35 party or on the court's own motion, the court may grant a temporary 22-36 restraining order without notice to the adverse party for the 22-37 preservation of the property and for the protection of the parties 22-38 as necessary, including an order prohibiting one or both parties 22-39 from: 22-40 (1) intentionally communicating by telephone or in 22-41 writing with the other party by use of vulgar, profane, obscene, or 22-42 indecent language or in a coarse or offensive manner, with intent 22-43 to annoy or alarm the other; 22-44 (2) threatening the other, by telephone or in writing, 22-45 to take unlawful action against any person, intending by this 22-46 action to annoy or alarm the other; 22-47 (3) placing a telephone call, anonymously, at an 22-48 unreasonable hour, in an offensive and repetitious manner, or 22-49 without a legitimate purpose of communication with the intent to 22-50 annoy or alarm the other; 22-51 (4) intentionally, knowingly, or recklessly causing 22-52 bodily injury to the other or to a child of either party; 22-53 (5) threatening the other or a child of either party 22-54 with imminent bodily injury; 22-55 (6) intentionally, knowingly, or recklessly 22-56 destroying, removing, concealing, encumbering, transferring, or 22-57 otherwise harming or reducing the value of the property of the 22-58 parties or either party with intent to obstruct the authority of 22-59 the court to order a division of the estate of the parties in a 22-60 manner that the court deems just and right, having due regard for 22-61 the rights of each party and any children of the marriage; 22-62 (7) intentionally falsifying a writing or record 22-63 relating to the property of either party; 22-64 (8) intentionally misrepresenting or refusing to 22-65 disclose to the other party or to the court, on proper request, the 22-66 existence, amount, or location of any property of the parties or 22-67 either party; 22-68 (9) intentionally or knowingly damaging or destroying 22-69 the tangible property of the parties or either party; or 23-1 (10) intentionally or knowingly tampering with the 23-2 tangible property of the parties or either party and causing 23-3 pecuniary loss or substantial inconvenience to the other. 23-4 (b) A temporary restraining order under this subchapter may 23-5 not include a provision: 23-6 (1) the subject of which is a requirement, 23-7 appointment, award, or other order listed in Section 886A, Texas 23-8 Probate Code; or 23-9 (2) that: 23-10 (A) excludes a spouse from occupancy of the 23-11 residence where that spouse is living except as provided in a 23-12 protective order made in accordance with Title 4; 23-13 (B) prohibits a party from spending funds for 23-14 reasonable and necessary living expenses; or 23-15 (C) prohibits a party from engaging in acts 23-16 reasonable and necessary to conduct that party's usual business and 23-17 occupation. 23-18 Sec. 6.502. TEMPORARY INJUNCTION AND OTHER TEMPORARY ORDERS. 23-19 While a suit for dissolution of a marriage is pending and on the 23-20 motion of a party or on the court's own motion after notice and 23-21 hearing, the court may render an appropriate order, including the 23-22 granting of a temporary injunction for the preservation of the 23-23 property and protection of the parties as deemed necessary and 23-24 equitable and including an order directed to one or both parties: 23-25 (1) requiring a sworn inventory and appraisement of 23-26 the real and personal property owned or claimed by the parties and 23-27 specifying the form, manner, and substance of the inventory and 23-28 appraisal and list of debts and liabilities; 23-29 (2) requiring payments to be made for the support of 23-30 either spouse; 23-31 (3) requiring the production of books, papers, 23-32 documents, and tangible things by a party; 23-33 (4) ordering payment of reasonable attorney's fees and 23-34 expenses; 23-35 (5) appointing a receiver for the preservation and 23-36 protection of the property of the parties; 23-37 (6) awarding one spouse exclusive occupancy of the 23-38 residence during the pendency of the case; 23-39 (7) prohibiting the parties, or either party, from 23-40 spending funds beyond an amount the court determines to be for 23-41 reasonable and necessary living expenses; 23-42 (8) awarding one spouse exclusive control of a party's 23-43 usual business or occupation; or 23-44 (9) prohibiting an act described by Section 6.501(a). 23-45 Sec. 6.503. AFFIDAVIT, VERIFIED PLEADING, AND BOND NOT 23-46 REQUIRED. (a) A temporary restraining order or temporary 23-47 injunction under this subchapter: 23-48 (1) may be granted without an affidavit or a verified 23-49 pleading stating specific facts showing that immediate and 23-50 irreparable injury, loss, or damage will result before notice can 23-51 be served and a hearing can be held; and 23-52 (2) need not: 23-53 (A) define the injury or state why it is 23-54 irreparable; 23-55 (B) state why the order was granted without 23-56 notice; or 23-57 (C) include an order setting the suit for trial 23-58 on the merits with respect to the ultimate relief sought. 23-59 (b) In a suit for dissolution of a marriage, the court may 23-60 dispense with the issuance of a bond between the spouses in 23-61 connection with temporary orders for the protection of the parties 23-62 and their property. 23-63 Sec. 6.504. PROTECTIVE ORDERS. On the motion of a party to 23-64 a suit for dissolution of a marriage, the court may render a 23-65 protective order as provided by Chapter 71. 23-66 Sec. 6.505. COUNSELING. (a) While a divorce suit is 23-67 pending, the court may direct the parties to counsel with a person 23-68 named by the court. 23-69 (b) The person named by the court to counsel the parties 24-1 shall submit a written report to the court and to the parties 24-2 before the final hearing. In the report, the counselor shall give 24-3 only an opinion as to whether there exists a reasonable expectation 24-4 of reconciliation of the parties and, if so, whether further 24-5 counseling would be beneficial. The sole purpose of the report is 24-6 to aid the court in determining whether the suit for divorce should 24-7 be continued pending further counseling. 24-8 (c) A copy of the report shall be furnished to each party. 24-9 (d) If the court believes that there is a reasonable 24-10 expectation of the parties' reconciliation, the court may by 24-11 written order continue the proceedings and direct the parties to a 24-12 person named by the court for further counseling for a period fixed 24-13 by the court not to exceed 60 days, subject to any terms, 24-14 conditions, and limitations the court considers desirable. In 24-15 ordering counseling, the court shall consider the circumstances of 24-16 the parties, including the needs of the parties' family and the 24-17 availability of counseling services. At the expiration of the 24-18 period specified by the court, the counselor to whom the parties 24-19 were directed shall report to the court whether the parties have 24-20 complied with the court's order. Thereafter, the court shall 24-21 proceed as in a divorce suit generally. 24-22 Sec. 6.506. CONTEMPT. The violation of a temporary 24-23 restraining order, temporary injunction, or other temporary order 24-24 issued under this subchapter is punishable as contempt. 24-25 Sec. 6.507. INTERLOCUTORY APPEAL. An order under this 24-26 subchapter, except an order appointing a receiver, is not subject 24-27 to interlocutory appeal. 24-28 (Sections 6.508-6.600 reserved for expansion) 24-29 SUBCHAPTER G. ALTERNATIVE DISPUTE RESOLUTION 24-30 Sec. 6.601. ARBITRATION PROCEDURES. (a) On written 24-31 agreement of the parties, the court may refer a suit for 24-32 dissolution of a marriage to arbitration. The agreement must state 24-33 whether the arbitration is binding or nonbinding. 24-34 (b) If the parties agree to binding arbitration, the court 24-35 shall render an order reflecting the arbitrator's award. 24-36 Sec. 6.602. MEDIATION PROCEDURES. (a) On the written 24-37 agreement of the parties or on the court's own motion, the court 24-38 may refer a suit for dissolution of a marriage to mediation. 24-39 (b) A mediated settlement agreement is binding on the 24-40 parties if the agreement: 24-41 (1) provides in a separate paragraph that the 24-42 agreement is not subject to revocation; 24-43 (2) is signed by each party to the agreement; and 24-44 (3) is signed by the party's attorney, if any, who is 24-45 present at the time the agreement is signed. 24-46 (c) If a mediated settlement agreement meets the 24-47 requirements of this section, a party is entitled to judgment on 24-48 the mediated settlement agreement notwithstanding Rule 11, Texas 24-49 Rules of Civil Procedure, or another rule of law. 24-50 (Sections 6.603-6.700 reserved for expansion) 24-51 SUBCHAPTER H. TRIAL AND APPEAL 24-52 Sec. 6.701. FAILURE TO ANSWER. In a suit for divorce, the 24-53 petition may not be taken as confessed if the respondent does not 24-54 file an answer. 24-55 Sec. 6.702. JURY. In a suit for dissolution of a marriage, 24-56 either party may demand a jury trial unless the action is a suit to 24-57 annul an underage marriage under Section 6.101 or 6.102. 24-58 Sec. 6.703. TESTIMONY OF HUSBAND OR WIFE. (a) In a suit 24-59 for dissolution of a marriage, the husband and wife are competent 24-60 witnesses for and against each other. A spouse may not be 24-61 compelled to testify as to a matter that will incriminate the 24-62 spouse. 24-63 (b) If the husband or wife testifies, the court or jury 24-64 trying the case shall determine the credibility of the witness and 24-65 the weight to be given the witness's testimony. 24-66 Sec. 6.704. TESTIMONY BY MARRIAGE COUNSELOR. (a) The 24-67 report by the person named by the court to counsel the parties to a 24-68 suit for divorce may not be admitted as evidence in the suit. 24-69 (b) The person named by the court to counsel the parties is 25-1 not competent to testify in any suit involving the parties or their 25-2 children. 25-3 (c) The files, records, and other work products of the 25-4 counselor are privileged and confidential for all purposes and may 25-5 not be admitted as evidence in any suit involving the parties or 25-6 their children. 25-7 Sec. 6.705. CHANGE OF NAME. (a) In a decree of divorce or 25-8 annulment, the court shall change the name of a party specifically 25-9 requesting the change to a name previously used by the party unless 25-10 the court states in the decree a reason for denying the change of 25-11 name. 25-12 (b) The court may not deny a change of name solely to keep 25-13 the last name of family members the same. 25-14 (c) A change of name does not release a person from 25-15 liability incurred by the person under a previous name or defeat a 25-16 right the person held under a previous name. 25-17 (d) A person whose name is changed under this section may 25-18 apply for a change of name certificate from the clerk of the court 25-19 as provided by Section 45.106. 25-20 Sec. 6.706. TRANSFERS AND DEBTS PENDING DECREE. (a) A 25-21 transfer of real or personal community property or a debt incurred 25-22 by a spouse while a suit for divorce or annulment is pending that 25-23 subjects the other spouse or the community property to liability is 25-24 void with respect to the other spouse if the transfer was made or 25-25 the debt incurred with the intent to injure the rights of the other 25-26 spouse. 25-27 (b) A transfer or debt is not void if the person dealing 25-28 with the transferor or debtor spouse did not have notice of the 25-29 intent to injure the rights of the other spouse. 25-30 (c) The spouse seeking to void a transfer or debt incurred 25-31 while a suit for divorce or annulment is pending has the burden of 25-32 proving that the person dealing with the transferor or debtor 25-33 spouse had notice of the intent to injure the rights of the spouse 25-34 seeking to void the transaction. 25-35 Sec. 6.707. COSTS. (a) In a suit for dissolution of a 25-36 marriage, the court as it considers reasonable may award costs to a 25-37 party. Costs may not be adjudged against a party against whom a 25-38 divorce is granted for confinement in a mental hospital under 25-39 Section 6.007. 25-40 (b) The expenses of counseling may be taxed as costs against 25-41 either or both parties. 25-42 Sec. 6.708. TEMPORARY ORDERS DURING APPEAL. (a) Not later 25-43 than the 30th day after the date an appeal is perfected, on the 25-44 motion of a party or on the court's own motion, after notice and 25-45 hearing, the trial court may render a temporary order necessary for 25-46 the preservation of the property and for the protection of the 25-47 parties during the appeal, including an order to: 25-48 (1) require the support of either spouse; 25-49 (2) require the payment of reasonable attorney's fees 25-50 and expenses; 25-51 (3) appoint a receiver for the preservation and 25-52 protection of the property of the parties; or 25-53 (4) award one spouse exclusive occupancy of the 25-54 parties' residence pending the appeal. 25-55 (b) The trial court retains jurisdiction to enforce a 25-56 temporary order under this section unless the appellate court, on a 25-57 proper showing, supersedes the trial court's order. 25-58 (Sections 6.709-6.800 reserved for expansion) 25-59 SUBCHAPTER I. REMARRIAGE 25-60 Sec. 6.801. REMARRIAGE. (a) Except as otherwise provided 25-61 by this subchapter, neither party to a divorce may marry a third 25-62 party before the 31st day after the date the divorce is decreed. 25-63 (b) The former spouses may marry each other at any time. 25-64 Sec. 6.802. WAIVER OF PROHIBITION AGAINST REMARRIAGE. For 25-65 good cause shown the court may waive the prohibition against 25-66 remarriage provided by this subchapter as to either or both spouses 25-67 if a record of the proceedings is made and preserved or if findings 25-68 of fact and conclusions of law are filed by the court. 26-1 CHAPTER 7. AWARD OF MARITAL PROPERTY 26-2 Sec. 7.001. GENERAL RULE OF PROPERTY DIVISION. In a decree 26-3 of divorce or annulment, the court shall order a division of the 26-4 estate of the parties in a manner that the court deems just and 26-5 right, having due regard for the rights of each party and any 26-6 children of the marriage. 26-7 Sec. 7.002. DIVISION OF PROPERTY UNDER SPECIAL 26-8 CIRCUMSTANCES. In addition to the division of the estate of the 26-9 parties required by Section 7.001, in a decree of divorce or 26-10 annulment the court shall order a division of the following real 26-11 and personal property, wherever situated, in a manner that the 26-12 court deems just and right, having due regard for the rights of 26-13 each party and any children of the marriage: 26-14 (1) property that was acquired by either spouse while 26-15 domiciled in another state and that would have been community 26-16 property if the spouse who acquired the property had been domiciled 26-17 in this state at the time of the acquisition; or 26-18 (2) property that was acquired by either spouse in 26-19 exchange for real or personal property and that would have been 26-20 community property if the spouse who acquired the property so 26-21 exchanged had been domiciled in this state at the time of its 26-22 acquisition. 26-23 Sec. 7.003. DISPOSITION OF RETIREMENT AND EMPLOYMENT 26-24 BENEFITS AND OTHER PLANS. In a decree of divorce or annulment, the 26-25 court shall determine the rights of both spouses in a pension, 26-26 retirement plan, annuity, individual retirement account, employee 26-27 stock option plan, stock option, or other form of savings, bonus, 26-28 profit-sharing, or other employer plan or financial plan of an 26-29 employee or a participant, regardless of whether the person is 26-30 self-employed, in the nature of compensation or savings. 26-31 Sec. 7.004. DISPOSITION OF RIGHTS IN INSURANCE. In a decree 26-32 of divorce or annulment, the court shall specifically divide or 26-33 award the rights of each spouse in an insurance policy. 26-34 Sec. 7.005. INSURANCE COVERAGE NOT SPECIFICALLY AWARDED. 26-35 (a) If in a decree of divorce or annulment the court does not 26-36 specifically award all of the rights of the spouses in an insurance 26-37 policy other than life insurance in effect at the time the decree 26-38 is rendered, the policy remains in effect until the policy expires 26-39 according to the policy's own terms. 26-40 (b) The proceeds of a valid claim under the policy are 26-41 payable as follows: 26-42 (1) if the interest in the property insured was 26-43 awarded solely to one former spouse by the decree, to that former 26-44 spouse; 26-45 (2) if an interest in the property insured was awarded 26-46 to each former spouse, to those former spouses in proportion to the 26-47 interests awarded; or 26-48 (3) if the insurance coverage is directly related to 26-49 the person of one of the former spouses, to that former spouse. 26-50 (c) The failure of either former spouse to change the 26-51 endorsement on the policy to reflect the distribution of proceeds 26-52 established by this section does not relieve the insurer of 26-53 liability to pay the proceeds or any other obligation on the 26-54 policy. 26-55 (d) This section does not affect the right of a former 26-56 spouse to assert an ownership interest in an undivided life 26-57 insurance policy, as provided by Subchapter D, Chapter 9. 26-58 Sec. 7.006. AGREEMENT INCIDENT TO DIVORCE OR ANNULMENT. 26-59 (a) To promote amicable settlement of disputes in a suit for 26-60 divorce or annulment, the spouses may enter into a written 26-61 agreement concerning the division of the property and the 26-62 liabilities of the spouses and maintenance of either spouse. The 26-63 agreement may be revised or repudiated before rendition of the 26-64 divorce or annulment unless the agreement is binding under another 26-65 rule of law. 26-66 (b) If the court finds that the terms of the written 26-67 agreement in a divorce or annulment are just and right, those terms 26-68 are binding on the court. If the court approves the agreement, the 26-69 court may set forth the agreement in full or incorporate the 27-1 agreement by reference in the final decree. 27-2 (c) If the court finds that the terms of the written 27-3 agreement in a divorce or annulment are not just and right, the 27-4 court may request the spouses to submit a revised agreement or may 27-5 set the case for a contested hearing. 27-6 CHAPTER 8. MAINTENANCE 27-7 Sec. 8.001. DEFINITION. In this chapter, "maintenance" 27-8 means an award in a suit for dissolution of a marriage of periodic 27-9 payments from the future income of one spouse for the support of 27-10 the other spouse. 27-11 Sec. 8.002. Eligibility for Maintenance. In a suit for 27-12 dissolution of a marriage or in a proceeding for maintenance in a 27-13 court with personal jurisdiction over both former spouses following 27-14 the dissolution of their marriage by a court that lacked personal 27-15 jurisdiction over an absent spouse, the court may order maintenance 27-16 for either spouse only if: 27-17 (1) the spouse from whom maintenance is requested was 27-18 convicted of or received deferred adjudication for a criminal 27-19 offense that also constitutes an act of family violence under 27-20 Chapter 71 and the offense occurred: 27-21 (A) within two years before the date on which a 27-22 suit for dissolution of the marriage is filed; or 27-23 (B) while the suit is pending; or 27-24 (2) the duration of the marriage was 10 years or 27-25 longer, the spouse seeking maintenance lacks sufficient property, 27-26 including property distributed to the spouse under this code, to 27-27 provide for the spouse's minimum reasonable needs, as limited by 27-28 Section 8.005, and the spouse seeking maintenance: 27-29 (A) is unable to support himself or herself 27-30 through appropriate employment because of an incapacitating 27-31 physical or mental disability; 27-32 (B) is the custodian of a child who requires 27-33 substantial care and personal supervision because a physical or 27-34 mental disability makes it necessary, taking into consideration the 27-35 needs of the child, that the spouse not be employed outside the 27-36 home; or 27-37 (C) clearly lacks earning ability in the labor 27-38 market adequate to provide support for the spouse's minimum 27-39 reasonable needs, as limited by Section 8.005. 27-40 Sec. 8.003. Factors in Determining Maintenance. A court 27-41 that determines that a spouse is eligible to receive maintenance 27-42 under this chapter shall determine the nature, amount, duration, 27-43 and manner of periodic payments by considering all relevant 27-44 factors, including: 27-45 (1) the financial resources of the spouse seeking 27-46 maintenance, including the community and separate property and 27-47 liabilities apportioned to that spouse in the dissolution 27-48 proceeding, and that spouse's ability to meet the spouse's needs 27-49 independently; 27-50 (2) the education and employment skills of the 27-51 spouses, the time necessary to acquire sufficient education or 27-52 training to enable the spouse seeking maintenance to find 27-53 appropriate employment, the availability of that education or 27-54 training, and the feasibility of that education or training; 27-55 (3) the duration of the marriage; 27-56 (4) the age, employment history, earning ability, and 27-57 physical and emotional condition of the spouse seeking maintenance; 27-58 (5) the ability of the spouse from whom maintenance is 27-59 requested to meet that spouse's personal needs and to provide 27-60 periodic child support payments, if applicable, while meeting the 27-61 personal needs of the spouse seeking maintenance; 27-62 (6) acts by either spouse resulting in excessive or 27-63 abnormal expenditures or destruction, concealment, or fraudulent 27-64 disposition of community property, joint tenancy, or other property 27-65 held in common; 27-66 (7) the comparative financial resources of the 27-67 spouses, including medical, retirement, insurance, or other 27-68 benefits, and the separate property of each spouse; 27-69 (8) the contribution by one spouse to the education, 28-1 training, or increased earning power of the other spouse; 28-2 (9) the property brought to the marriage by either 28-3 spouse; 28-4 (10) the contribution of a spouse as homemaker; 28-5 (11) marital misconduct of the spouse seeking 28-6 maintenance; and 28-7 (12) the efforts of the spouse seeking maintenance to 28-8 pursue available employment counseling as provided by Chapter 304, 28-9 Labor Code. 28-10 Sec. 8.004. Presumption. (a) Except as provided by 28-11 Subsection (b), it is presumed that maintenance is not warranted 28-12 unless the spouse seeking maintenance has exercised diligence in: 28-13 (1) seeking suitable employment; or 28-14 (2) developing the necessary skills to become 28-15 self-supporting during a period of separation and during the time 28-16 the suit for dissolution of the marriage is pending. 28-17 (b) This section does not apply to a spouse who is not able 28-18 to satisfy the presumption in Subsection (a) because of an 28-19 incapacitating physical or mental disability. 28-20 Sec. 8.005. Duration of Maintenance Order. (a) Except as 28-21 provided by Subsection (b), a court: 28-22 (1) may not order maintenance that remains in effect 28-23 for more than three years after the date of the order; and 28-24 (2) shall limit the duration of a maintenance order to 28-25 the shortest reasonable period that allows the spouse seeking 28-26 maintenance to meet the spouse's minimum reasonable needs by 28-27 obtaining appropriate employment or developing an appropriate 28-28 skill, unless the ability of the spouse to provide for the spouse's 28-29 minimum reasonable needs through employment is substantially or 28-30 totally diminished because of: 28-31 (A) physical or mental disability; 28-32 (B) duties as the custodian of an infant or 28-33 young child; or 28-34 (C) another compelling impediment to gainful 28-35 employment. 28-36 (b) If a spouse seeking maintenance is unable to support 28-37 himself or herself through appropriate employment because of an 28-38 incapacitating physical or mental disability, the court may order 28-39 maintenance for an indefinite period for as long as the disability 28-40 continues. The court may order periodic review of its order, on 28-41 the request of either party or on its own motion, to determine 28-42 whether the disability is continuing. The continuation of spousal 28-43 maintenance under these circumstances is subject to a motion to 28-44 modify as provided by Section 8.008. 28-45 Sec. 8.006. Amount of Maintenance. (a) A court may not 28-46 order maintenance that requires a spouse to pay monthly more than 28-47 the lesser of: 28-48 (1) $2,500; or 28-49 (2) 20 percent of the spouse's average monthly gross 28-50 income. 28-51 (b) The court shall set the amount that a spouse is required 28-52 to pay in a maintenance order to provide for the minimum reasonable 28-53 needs of the spouse receiving the maintenance under the order, 28-54 considering employment or property received in the dissolution of 28-55 the marriage or otherwise owned by the spouse receiving the 28-56 maintenance that contributes to the minimum reasonable needs of 28-57 that spouse. 28-58 (c) Department of Veterans Affairs service-connected 28-59 disability compensation, social security benefits and disability 28-60 benefits, and workers' compensation benefits are excluded from 28-61 maintenance. 28-62 Sec. 8.007. Termination. (a) The obligation to pay future 28-63 maintenance terminates on the death of either party or on the 28-64 remarriage of the party receiving maintenance. 28-65 (b) After a hearing, the court shall terminate the 28-66 maintenance order if the party receiving maintenance cohabits with 28-67 another person in a permanent place of abode on a continuing, 28-68 conjugal basis. 28-69 Sec. 8.008. Modification of Maintenance Order. (a) The 29-1 amount of maintenance specified in a court order or the portion of 29-2 a decree that provides for the support of a former spouse may be 29-3 reduced by the filing of a motion in the court that originally 29-4 rendered the order. A party affected by the order or the portion 29-5 of the decree to be modified may file the motion. 29-6 (b) Notice of a motion to modify maintenance and the 29-7 response, if any, are governed by the Texas Rules of Civil 29-8 Procedure applicable to the filing of an original lawsuit. Notice 29-9 must be given by service of citation, and a response must be in the 29-10 form of an answer due on or before 10 a.m. of the first Monday 29-11 after 20 days after the date of service. A court shall set a 29-12 hearing on the motion in the manner provided by Rule 245, Texas 29-13 Rules of Civil Procedure. 29-14 (c) After a hearing, the court may modify an original or 29-15 modified order or portion of a decree providing for maintenance on 29-16 a proper showing of a material and substantial change in 29-17 circumstances of either party. The court shall apply the 29-18 modification only to payment accruing after the filing of the 29-19 motion to modify. 29-20 (d) A loss of employment or circumstances that render a 29-21 former spouse unable to support himself or herself through 29-22 appropriate employment by reason of incapacitating physical or 29-23 mental disability that occur after the divorce or annulment are not 29-24 grounds for the institution of spousal maintenance for the benefit 29-25 of the former spouse. 29-26 Sec. 8.009. Enforcement of Maintenance Order. (a) The 29-27 court may enforce by contempt the court's maintenance order or an 29-28 agreement for the payment of maintenance voluntarily entered into 29-29 between the parties and approved by the court. 29-30 (b) On the suit to enforce of a party entitled to receive 29-31 maintenance payments, the court may render judgment against a 29-32 defaulting party for an amount unpaid and owing after notice by 29-33 service of citation, answer, if any, and a hearing finding that the 29-34 defaulting party has failed or refused to carry out the terms of 29-35 the order. The judgment may be enforced by any means available for 29-36 the enforcement of judgment for debts. 29-37 (c) It is an affirmative defense to an allegation of 29-38 contempt of court or the violation of a condition of probation 29-39 requiring payment of court-ordered maintenance that the obligor: 29-40 (1) lacked the ability to provide maintenance in the 29-41 amount ordered; 29-42 (2) lacked property that could be sold, mortgaged, or 29-43 otherwise pledged to raise the funds needed; 29-44 (3) attempted unsuccessfully to borrow the needed 29-45 funds; and 29-46 (4) did not know of a source from which the money 29-47 could have been borrowed or otherwise legally obtained. 29-48 (d) The issue of the existence of an affirmative defense 29-49 does not arise unless evidence is admitted supporting the defense. 29-50 If the issue of the existence of an affirmative defense arises, an 29-51 obligor must prove the affirmative defense by a preponderance of 29-52 the evidence. 29-53 Sec. 8.010. Putative Spouse. In a suit to declare a 29-54 marriage void, a putative spouse who did not have knowledge of an 29-55 existing impediment to a valid marriage may be awarded maintenance 29-56 if otherwise qualified to receive maintenance under this chapter. 29-57 Sec. 8.011. Unmarried Cohabitants. An order for maintenance 29-58 is not authorized between unmarried cohabitants under any 29-59 circumstances. 29-60 CHAPTER 9. POST-DECREE PROCEEDINGS 29-61 SUBCHAPTER A. SUIT TO ENFORCE DECREE 29-62 Sec. 9.001. ENFORCEMENT OF DECREE. (a) A party affected by 29-63 a decree of divorce or annulment providing for a division of 29-64 property as provided by Chapter 7 may request enforcement of that 29-65 decree by filing a suit to enforce as provided by this chapter in 29-66 the court that rendered the decree. 29-67 (b) Except as otherwise provided in this chapter, a suit to 29-68 enforce shall be governed by the Texas Rules of Civil Procedure 29-69 applicable to the filing of an original lawsuit. 30-1 (c) A party whose rights, duties, powers, or liabilities may 30-2 be affected by the suit to enforce is entitled to receive notice by 30-3 citation and shall be commanded to appear by filing a written 30-4 answer. Thereafter, the proceedings shall be as in civil cases 30-5 generally. 30-6 Sec. 9.002. CONTINUING AUTHORITY TO ENFORCE DECREE. The 30-7 court that rendered the decree of divorce or annulment retains the 30-8 power to enforce the property division as provided by Chapter 7. 30-9 Sec. 9.003. FILING DEADLINES. (a) A suit to enforce the 30-10 division of tangible personal property in existence at the time of 30-11 the decree of divorce or annulment must be filed before the second 30-12 anniversary of the date the decree was signed or becomes final 30-13 after appeal, whichever date is later, or the suit is barred. 30-14 (b) A suit to enforce the division of future property not in 30-15 existence at the time of the original decree must be filed before 30-16 the second anniversary of the date the right to the property 30-17 matures or accrues or the decree becomes final, whichever date is 30-18 later, or the suit is barred. 30-19 Sec. 9.004. APPLICABILITY TO UNDIVIDED PROPERTY. The 30-20 procedures and limitations of this subchapter do not apply to 30-21 existing property not divided on divorce, which are governed by 30-22 Subchapter C and by the rules applicable to civil cases generally. 30-23 Sec. 9.005. NO JURY. A party may not demand a jury trial if 30-24 the procedures to enforce a decree of divorce or annulment provided 30-25 by this subchapter are invoked. 30-26 Sec. 9.006. ENFORCEMENT OF DIVISION OF PROPERTY. 30-27 (a) Except as provided by this subchapter and by the Texas Rules 30-28 of Civil Procedure, the court may render further orders to enforce 30-29 the division of property made in the decree of divorce or annulment 30-30 to assist in the implementation of or to clarify the prior order. 30-31 (b) The court may specify more precisely the manner of 30-32 effecting the property division previously made if the substantive 30-33 division of property is not altered or changed. 30-34 (c) An order of enforcement does not alter or affect the 30-35 finality of the decree of divorce or annulment being enforced. 30-36 Sec. 9.007. LIMITATION ON POWER OF COURT TO ENFORCE. (a) A 30-37 court may not amend, modify, alter, or change the division of 30-38 property made or approved in the decree of divorce or annulment. 30-39 An order to enforce the division is limited to an order to assist 30-40 in the implementation of or to clarify the prior order and may not 30-41 alter or change the substantive division of property. 30-42 (b) An order under this section that amends, modifies, 30-43 alters, or changes the actual, substantive division of property 30-44 made or approved in a final decree of divorce or annulment is 30-45 beyond the power of the divorce court and is unenforceable. 30-46 (c) The power of the court to render further orders to 30-47 assist in the implementation of or to clarify the property division 30-48 is abated while an appellate proceeding is pending. 30-49 Sec. 9.008. CLARIFICATION ORDER. (a) On the request of a 30-50 party or on the court's own motion, the court may render a 30-51 clarifying order before a motion for contempt is made or heard, in 30-52 conjunction with a motion for contempt or on denial of a motion for 30-53 contempt. 30-54 (b) On a finding by the court that the original form of the 30-55 division of property is not specific enough to be enforceable by 30-56 contempt, the court may render a clarifying order setting forth 30-57 specific terms to enforce compliance with the original division of 30-58 property. 30-59 (c) The court may not give retroactive effect to a 30-60 clarifying order. 30-61 (d) The court shall provide a reasonable time for compliance 30-62 before enforcing a clarifying order by contempt or in another 30-63 manner. 30-64 Sec. 9.009. DELIVERY OF PROPERTY. To enforce the division 30-65 of property made in a decree of divorce or annulment, the court may 30-66 make an order to deliver the specific existing property awarded, 30-67 without regard to whether the property is of especial value, 30-68 including an award of an existing sum of money or its equivalent. 30-69 Sec. 9.010. REDUCTION TO MONEY JUDGMENT. (a) If a party 31-1 fails to comply with a decree of divorce or annulment and delivery 31-2 of property awarded in the decree is no longer an adequate remedy, 31-3 the court may render a money judgment for the damages caused by 31-4 that failure to comply. 31-5 (b) If a party did not receive payments of money as awarded 31-6 in the decree of divorce or annulment, the court may render 31-7 judgment against a defaulting party for the amount of unpaid 31-8 payments to which the party is entitled. 31-9 (c) The remedy of a reduction to money judgment is in 31-10 addition to the other remedies provided by law. 31-11 (d) A money judgment rendered under this section may be 31-12 enforced by any means available for the enforcement of judgment for 31-13 debt. 31-14 Sec. 9.011. RIGHT TO FUTURE PROPERTY. (a) The court may, 31-15 by any remedy provided by this chapter, enforce an award of the 31-16 right to receive installment payments or a lump-sum payment due on 31-17 the maturation of an existing vested or nonvested right to be paid 31-18 in the future. 31-19 (b) The subsequent actual receipt by the non-owning party of 31-20 property awarded to the owner in a decree of divorce or annulment 31-21 creates a fiduciary obligation in favor of the owner and imposes a 31-22 constructive trust on the property for the benefit of the owner. 31-23 Sec. 9.012. CONTEMPT. (a) The court may enforce by 31-24 contempt an order requiring delivery of specific property or an 31-25 award of a right to future property. 31-26 (b) The court may not enforce by contempt an award in a 31-27 decree of divorce or annulment of a sum of money payable in a lump 31-28 sum or in future installment payments in the nature of debt, except 31-29 for: 31-30 (1) a sum of money in existence at the time the decree 31-31 was rendered; or 31-32 (2) a matured right to future payments as provided by 31-33 Section 9.011. 31-34 (c) This subchapter does not detract from or limit the 31-35 general power of a court to enforce an order of the court by 31-36 appropriate means. 31-37 Sec. 9.013. COSTS. The court may award costs in a 31-38 proceeding to enforce a property division under this subchapter as 31-39 in other civil cases. 31-40 Sec. 9.014. ATTORNEY'S FEES. The court may award reasonable 31-41 attorney's fees as costs in a proceeding under this subchapter. 31-42 The court may order the attorney's fees to be paid directly to the 31-43 attorney, who may enforce the order for fees in the attorney's own 31-44 name by any means available for the enforcement of a judgment for 31-45 debt. 31-46 (Sections 9.015-9.100 reserved for expansion) 31-47 SUBCHAPTER B. POST-DECREE QUALIFIED DOMESTIC RELATIONS ORDER 31-48 Sec. 9.101. JURISDICTION FOR QUALIFIED DOMESTIC RELATIONS 31-49 ORDER. (a) Notwithstanding any other provision of this chapter, 31-50 the court that rendered a final decree of divorce or annulment or 31-51 another final order dividing property under this title retains 31-52 continuing, exclusive jurisdiction to render an enforceable 31-53 qualified domestic relations order or similar order permitting 31-54 payment of pension, retirement plan, or other employee benefits 31-55 divisible under the law of this state or of the United States to an 31-56 alternate payee or other lawful payee. 31-57 (b) Unless prohibited by federal law, a suit seeking a 31-58 qualified domestic relations order or similar order under this 31-59 section applies to a previously divided pension, retirement plan, 31-60 or other employee benefit divisible under the law of this state or 31-61 of the United States, whether the plan or benefit is private, 31-62 state, or federal. 31-63 Sec. 9.102. PROCEDURE. (a) A party to a decree of divorce 31-64 or annulment may petition the court for a qualified domestic 31-65 relations order or similar order. 31-66 (b) Except as otherwise provided by this code, a petition 31-67 under this subchapter is governed by the Texas Rules of Civil 31-68 Procedure that apply to the filing of an original lawsuit. 31-69 (c) Each party whose rights may be affected by the petition 32-1 is entitled to receive notice by citation and shall be commanded to 32-2 appear by filing a written answer. 32-3 (d) The proceedings shall be conducted in the same manner as 32-4 civil cases generally. 32-5 Sec. 9.103. PRIOR FAILURE TO RENDER QUALIFIED DOMESTIC 32-6 RELATIONS ORDER. A party may petition a court to render a 32-7 qualified domestic relations order or similar order if the court 32-8 that rendered a final decree of divorce or annulment or another 32-9 final order dividing property under this chapter did not provide a 32-10 qualified domestic relations order or similar order permitting 32-11 payment of benefits to an alternate payee or other lawful payee. 32-12 Sec. 9.104. DEFECTIVE PRIOR DOMESTIC RELATIONS ORDER. If a 32-13 plan administrator or other person acting in an equivalent capacity 32-14 determines that a domestic relations order does not satisfy the 32-15 requirements of a qualified domestic relations order or similar 32-16 order, the court retains continuing, exclusive jurisdiction over 32-17 the parties and their property to the extent necessary to render a 32-18 qualified domestic relations order. 32-19 Sec. 9.105. LIBERAL CONSTRUCTION. The court shall liberally 32-20 construe this subchapter to effect payment of retirement benefits 32-21 that were divided by a previous decree that failed to contain a 32-22 qualified domestic relations order or similar order or that 32-23 contained an order that failed to meet the requirements of a 32-24 qualified domestic relations order or similar order. 32-25 (Sections 9.106-9.200 reserved for expansion) 32-26 SUBCHAPTER C. POST-DECREE DIVISION OF PROPERTY 32-27 Sec. 9.201. PROCEDURE FOR DIVISION OF CERTAIN PROPERTY NOT 32-28 DIVIDED ON DIVORCE OR ANNULMENT. (a) Either former spouse may 32-29 file a suit as provided by this subchapter to divide property not 32-30 divided or awarded to a spouse in a final decree of divorce or 32-31 annulment. 32-32 (b) Except as otherwise provided by this subchapter, the 32-33 suit is governed by the Texas Rules of Civil Procedure applicable 32-34 to the filing of an original lawsuit. 32-35 Sec. 9.202. LIMITATIONS. (a) A suit under this subchapter 32-36 must be filed before the second anniversary of the date a former 32-37 spouse unequivocally repudiates the existence of the ownership 32-38 interest of the other former spouse and communicates that 32-39 repudiation to the other former spouse. 32-40 (b) The two-year limitations period is tolled for the period 32-41 that a court of this state does not have jurisdiction over the 32-42 former spouses or over the property. 32-43 Sec. 9.203. DIVISION OF UNDIVIDED ASSETS WHEN PRIOR COURT 32-44 HAD JURISDICTION. (a) If a court of this state failed to dispose 32-45 of property subject to division in a final decree of divorce or 32-46 annulment even though the court had jurisdiction over the spouses 32-47 or over the property, the court shall divide the property in a 32-48 manner that the court deems just and right, having due regard for 32-49 the rights of each party and any children of the marriage. 32-50 (b) If a final decree of divorce or annulment rendered by a 32-51 court in another state failed to dispose of property subject to 32-52 division under the law of that state even though the court had 32-53 jurisdiction to do so, a court of this state shall apply the law of 32-54 the other state regarding undivided property as required by Section 32-55 1, Article IV, United States Constitution (the full faith and 32-56 credit clause), and enabling federal statutes. 32-57 Sec. 9.204. DIVISION OF UNDIVIDED ASSETS WHEN PRIOR COURT 32-58 LACKED JURISDICTION. (a) If a court of this state failed to 32-59 dispose of property subject to division in a final decree of 32-60 divorce or annulment because the court lacked jurisdiction over a 32-61 spouse or the property, and if that court subsequently acquires the 32-62 requisite jurisdiction, that court may divide the property in a 32-63 manner that the court deems just and right, having due regard for 32-64 the rights of each party and any children of the marriage. 32-65 (b) If a final decree of divorce or annulment rendered by a 32-66 court in another state failed to dispose of property subject to 32-67 division under the law of that state because the court lacked 32-68 jurisdiction over a spouse or the property, and if a court of this 32-69 state subsequently acquires the requisite jurisdiction over the 33-1 former spouses or over the property, the court in this state may 33-2 divide the property in a manner that the court deems just and 33-3 right, having due regard for the rights of each party and any 33-4 children of the marriage. 33-5 Sec. 9.205. ATTORNEY'S FEES. In a proceeding to divide 33-6 property previously undivided in a decree of divorce or annulment 33-7 as provided by this subchapter, the court may award reasonable 33-8 attorney's fees as costs. The court may order the attorney's fees 33-9 to be paid directly to the attorney, who may enforce the order in 33-10 the attorney's own name by any means available for the enforcement 33-11 of a judgment for debt. 33-12 (Sections 9.206-9.300 reserved for expansion) 33-13 SUBCHAPTER D. DISPOSITION OF UNDIVIDED BENEFICIAL INTEREST 33-14 Sec. 9.301. PRE-DECREE DESIGNATION OF EX-SPOUSE AS 33-15 BENEFICIARY OF LIFE INSURANCE. (a) If a decree of divorce or 33-16 annulment is rendered after an insured has designated the insured's 33-17 spouse as a beneficiary under a life insurance policy in force at 33-18 the time of rendition, a provision in the policy in favor of the 33-19 insured's former spouse is not effective unless: 33-20 (1) the decree designates the insured's former spouse 33-21 as the beneficiary; 33-22 (2) the insured redesignates the former spouse as the 33-23 beneficiary after rendition of the decree; or 33-24 (3) the former spouse is designated to receive the 33-25 proceeds in trust for, on behalf of, or for the benefit of a child 33-26 or a dependent of either former spouse. 33-27 (b) If a designation is not effective under Subsection (a), 33-28 the proceeds of the policy are payable to the named alternative 33-29 beneficiary or, if there is not a named alternative beneficiary, to 33-30 the estate of the insured. 33-31 (c) An insurer who pays the proceeds of a life insurance 33-32 policy issued by the insurer to the beneficiary under a designation 33-33 that is not effective under Subsection (a) is liable for payment of 33-34 the proceeds to the person or estate provided by Subsection (b) 33-35 only if: 33-36 (1) before payment of the proceeds to the designated 33-37 beneficiary, the insurer receives written notice at the home office 33-38 of the insurer from an interested person that the designation is 33-39 not effective under Subsection (a); and 33-40 (2) the insurer has not interpleaded the proceeds into 33-41 the registry of a court of competent jurisdiction in accordance 33-42 with the Texas Rules of Civil Procedure. 33-43 Sec. 9.302. PRE-DECREE DESIGNATION OF EX-SPOUSE AS 33-44 BENEFICIARY IN RETIREMENT BENEFITS AND OTHER FINANCIAL PLANS. 33-45 (a) If a decree of divorce or annulment is rendered after a 33-46 spouse, acting in the capacity of a participant, annuitant, or 33-47 account holder, has designated the other spouse as a beneficiary 33-48 under an individual retirement account, employee stock option plan, 33-49 stock option, or other form of savings, bonus, profit-sharing, or 33-50 other employer plan or financial plan of an employee or a 33-51 participant in force at the time of rendition, the designating 33-52 provision in the plan in favor of the other former spouse is not 33-53 effective unless: 33-54 (1) the decree designates the other former spouse as 33-55 the beneficiary; 33-56 (2) the designating former spouse redesignates the 33-57 other former spouse as the beneficiary after rendition of the 33-58 decree; or 33-59 (3) the other former spouse is designated to receive 33-60 the proceeds or benefits in trust for, on behalf of, or for the 33-61 benefit of a child or dependent of either former spouse. 33-62 (b) If a designation is not effective under Subsection (a), 33-63 the benefits or proceeds are payable to the named alternative 33-64 beneficiary or, if there is not a named alternative beneficiary, to 33-65 the designating former spouse. 33-66 (c) A business entity, employer, pension trust, insurer, 33-67 financial institution, or other person obligated to pay retirement 33-68 benefits or proceeds of a financial plan covered by this section 33-69 who pays the benefits or proceeds to the beneficiary under a 34-1 designation of the other former spouse that is not effective under 34-2 Subsection (a) is liable for payment of the benefits or proceeds to 34-3 the person provided by Subsection (b) only if: 34-4 (1) before payment of the benefits or proceeds to the 34-5 designated beneficiary, the payor receives written notice at the 34-6 home office or principal office of the payor from an interested 34-7 person that the designation of the beneficiary or fiduciary is not 34-8 effective under Subsection (a); and 34-9 (2) the payor has not interpleaded the benefits or 34-10 proceeds into the registry of a court of competent jurisdiction in 34-11 accordance with the Texas Rules of Civil Procedure. 34-12 (d) This section does not affect the right of a former 34-13 spouse to assert an ownership interest in an undivided pension, 34-14 retirement, annuity, or other financial plan described by this 34-15 section as provided by this subchapter. 34-16 (e) This section does not apply to the disposition of a 34-17 beneficial interest in a retirement benefit or other financial plan 34-18 of a public retirement system as defined by Section 802.001, 34-19 Government Code. 34-20 SECTION 2. Subpart D, Part 5, Chapter XIII, Texas Probate 34-21 Code, is amended by adding Sections 886 through 886F to read as 34-22 follows: 34-23 Sec. 886. APPOINTMENT OF RECEIVER. (a) If any of the 34-24 separate property of a person reported to be a prisoner of war or 34-25 missing in action by the United States Department of Defense 34-26 appears to be in danger of injury, loss, or waste and in need of a 34-27 representative, a district judge of the county in which the person 34-28 reported to be a prisoner of war or missing in action or the spouse 34-29 of the person resides or where the endangered separate property is 34-30 located may by order, with or without application, appoint a 34-31 suitable person as receiver to take charge of the endangered 34-32 separate property. 34-33 (b) The order must include a requirement that the receiver 34-34 post bond as in ordinary receiverships in a sum the judge considers 34-35 necessary to protect the separate property and shall specify the 34-36 duties and powers of the receiver as the judge considers necessary 34-37 for the protection, conservation, and preservation of the separate 34-38 property. 34-39 (c) The clerk shall enter the order in the minutes of the 34-40 court, and the person appointed shall post bond for submission to 34-41 the judge for approval. On approval by the judge, the bond shall 34-42 be filed with the clerk. 34-43 (d) The receiver shall take charge of the endangered 34-44 separate property under the duties and powers provided by the order 34-45 of appointment and by subsequent orders as the judge shall make. 34-46 Sec. 886A. EXPENDITURES BY RECEIVER. If during the 34-47 receivership under Section 886 of this code the needs of the spouse 34-48 or dependent children of the person reported to be a prisoner of 34-49 war or missing in action require the use of the income or corpus of 34-50 the estate for education, clothing, or subsistence, the judge may, 34-51 with or without application, by order entered in the minutes of the 34-52 court, appropriate an amount of the income or corpus sufficient for 34-53 that purpose. The income or corpus shall be used by the receiver 34-54 to pay claims for education, clothing, or subsistence that are 34-55 presented to the judge and approved and ordered to be paid. 34-56 Sec. 886B. INVESTMENTS, LOANS, AND CONTRIBUTIONS BY 34-57 RECEIVER. If during the receivership under Section 886 of this 34-58 code the receiver has on hand an amount of money belonging to the 34-59 person reported to be a prisoner of war or missing in action in 34-60 excess of the amount needed for current necessities and expenses, 34-61 the receiver may, under direction of the judge, invest, lend, or 34-62 contribute all or a part of the excess money in the manner provided 34-63 by this chapter for investments, loans, or contributions by 34-64 guardians. The receiver shall report to the judge all transactions 34-65 involving excess money in the manner that reports are required of 34-66 guardians. 34-67 Sec. 886C. RECEIVER'S EXPENSES, ACCOUNT, AND COMPENSATION. 34-68 (a) All necessary expenses incurred by the receiver in 34-69 administering the property may be reported monthly to the judge by 35-1 a sworn statement of account, including a report of: 35-2 (1) the receiver's acts; 35-3 (2) the condition of the property; 35-4 (3) the status of the threatened danger to the 35-5 property; and 35-6 (4) the progress made toward abatement of the 35-7 threatened danger. 35-8 (b) If the judge is satisfied that the statement is correct 35-9 and reasonable in all respects, the judge shall promptly by order 35-10 approve the report and authorize the reimbursement of the receiver 35-11 from the funds under the receiver's control. 35-12 (c) For official services rendered, the receiver is entitled 35-13 to be compensated in the same manner and amount as is provided by 35-14 this chapter for similar services rendered by guardians of estates. 35-15 Sec. 886D. CLOSING RECEIVERSHIP. When the threatened danger 35-16 has abated and the separate property is no longer liable to injury, 35-17 loss, or waste for the lack of a representative, the receiver 35-18 shall: 35-19 (1) report to the judge; and 35-20 (2) file with the clerk a full and final sworn account 35-21 of: 35-22 (A) all property received by the receiver; 35-23 (B) all sums paid out; 35-24 (C) all acts performed by the receiver with 35-25 respect to the property; and 35-26 (D) all property remaining in the receiver's 35-27 control. 35-28 Sec. 886E. ACTION OF JUDGE. (a) If on hearing the report 35-29 and account the judge is satisfied that the danger of injury, loss, 35-30 or waste has abated and that the report and account are correct, 35-31 the judge shall render an order so finding and shall direct the 35-32 receiver to deliver the property to the person from whom the 35-33 receiver took possession as receiver, to the person who was 35-34 reported to be a prisoner of war or missing in action, or to 35-35 another person the judge finds to be entitled to possession of the 35-36 estate. The person to whom the property is delivered shall execute 35-37 and file with the clerk an appropriate receipt for the property 35-38 delivered. 35-39 (b) The order of the judge shall discharge the receiver and 35-40 the receiver's sureties. 35-41 (c) If the judge is not satisfied that the danger has 35-42 abated, or is not satisfied with the report and account, the judge 35-43 shall render an order continuing the receivership in effect until 35-44 the judge is so satisfied. 35-45 Sec. 886F. RECORDATION OF PROCEEDINGS. All orders, bonds, 35-46 reports, accounts, and notices in the receivership proceedings 35-47 shall be recorded in the minutes of the court. 35-48 SECTION 3. Title 1, Family Code, as that title existed 35-49 before the effective date of this Act, is repealed. 35-50 SECTION 4. The change in law made by this Act does not 35-51 affect a proceeding under the Family Code pending on the effective 35-52 date of this Act. A proceeding pending on the effective date of 35-53 this Act is governed by the law in effect at the time the 35-54 proceeding was commenced, and the former law is continued in effect 35-55 for that purpose. 35-56 SECTION 5. The importance of this legislation and the 35-57 crowded condition of the calendars in both houses create an 35-58 emergency and an imperative public necessity that the 35-59 constitutional rule requiring bills to be read on three several 35-60 days in each house be suspended, and this rule is hereby suspended, 35-61 and that this Act take effect and be in force from and after its 35-62 passage, and it is so enacted. 35-63 * * * * *