By Naishtat H.B. No. 3141
76R7441 CMR-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to maintenance awarded to a spouse in a suit for
1-3 dissolution of a marriage.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 8.002, Family Code, is amended to read as
1-6 follows:
1-7 Sec. 8.002. ELIGIBILITY FOR MAINTENANCE. In a suit for
1-8 dissolution of a marriage or in a proceeding for maintenance in a
1-9 court with personal jurisdiction over both former spouses following
1-10 the dissolution of their marriage by a court that lacked personal
1-11 jurisdiction over an absent spouse, the court may order maintenance
1-12 for either spouse only if:
1-13 (1) the spouse from whom maintenance is requested is
1-14 found to have committed an act of family violence that [was
1-15 convicted of or received deferred adjudication for a criminal
1-16 offense that also constitutes an act of family violence under
1-17 Chapter 71 and the offense] occurred:
1-18 (A) within two years before the date on which a
1-19 suit for dissolution of the marriage is filed; or
1-20 (B) while the suit is pending; [or]
1-21 (2) the duration of the marriage was 10 years or
1-22 longer, the spouse seeking maintenance lacks sufficient property,
1-23 including property distributed to the spouse under this code, to
1-24 provide for the spouse's [minimum] reasonable needs, as limited by
2-1 Section 8.005, and the spouse seeking maintenance clearly lacks
2-2 earning capacity adequate to provide support for the spouse's
2-3 reasonable needs;
2-4 (3) the spouse seeking maintenance [:(A)] is unable to
2-5 support himself or herself through appropriate employment because
2-6 of the spouse's age or [an] incapacitating physical or mental
2-7 disability; or
2-8 (4) the spouse seeking maintenance [(B)] is the
2-9 custodian of a child who requires substantial care and personal
2-10 supervision because a physical or mental disability makes it
2-11 necessary, taking into consideration the best interest [needs] of
2-12 the child, that the spouse not be employed outside the home[; or]
2-13 [(C) clearly lacks earning ability in the labor
2-14 market adequate to provide support for the spouse's minimum
2-15 reasonable needs, as limited by Section 8.005].
2-16 SECTION 2. Section 8.003, Family Code, is amended to read as
2-17 follows:
2-18 Sec. 8.003. FACTORS IN DETERMINING MAINTENANCE. A court
2-19 that determines that a spouse is eligible to receive maintenance
2-20 under this chapter shall determine the nature, amount, duration,
2-21 and manner of periodic payments by considering all relevant
2-22 factors, including:
2-23 (1) the financial resources of the spouse seeking
2-24 maintenance, including the community and separate property and
2-25 liabilities apportioned to that spouse in the dissolution
2-26 proceeding, and that spouse's ability to meet the spouse's needs
2-27 independently;
3-1 (2) the education and employment skills of the
3-2 spouses, the time necessary to acquire sufficient education or
3-3 training to enable the spouse seeking maintenance to find
3-4 appropriate employment, the availability of that education or
3-5 training, and the feasibility of that education or training;
3-6 (3) the duration of the marriage;
3-7 (4) the age, employment history, earning ability, and
3-8 physical and emotional condition of the spouse seeking maintenance;
3-9 (5) the ability of the spouse from whom maintenance is
3-10 requested to meet that spouse's personal needs and to provide
3-11 periodic child support payments, if applicable, while meeting the
3-12 personal needs of the spouse seeking maintenance;
3-13 (6) acts by either spouse resulting in excessive or
3-14 abnormal expenditures or destruction, concealment, or fraudulent
3-15 disposition of community property, joint tenancy, or other property
3-16 held in common;
3-17 (7) the comparative financial resources of the
3-18 spouses, including medical, retirement, insurance, or other
3-19 benefits, and the separate property of each spouse;
3-20 (8) the contribution by one spouse to the education,
3-21 training, or increased earning power of the other spouse;
3-22 (9) the property brought to the marriage by either
3-23 spouse;
3-24 (10) the contribution of a spouse as homemaker;
3-25 (11) marital misconduct of the spouse seeking
3-26 maintenance; [and]
3-27 (12) the efforts of the spouse seeking maintenance to
4-1 pursue available employment counseling as provided by Chapter 304,
4-2 Labor Code; and
4-3 (13) the amount and duration of spousal support, if
4-4 any, paid during the spouses' separation.
4-5 SECTION 3. Section 8.004(b), Family Code, is amended to read
4-6 as follows:
4-7 (b) This section does not apply to a spouse who is not able
4-8 to satisfy the presumption in Subsection (a) because of the
4-9 spouse's age or [an] incapacitating physical or mental disability.
4-10 SECTION 4. Section 8.005, Family Code, is amended to read as
4-11 follows:
4-12 Sec. 8.005. DURATION OF MAINTENANCE ORDER. (a) Except as
4-13 provided by Subsection (b), a court:
4-14 (1) may not order maintenance that remains in effect
4-15 for more than three years after the date of the order; and
4-16 (2) shall limit the duration of a maintenance order to
4-17 the shortest reasonable period that allows the spouse seeking
4-18 maintenance to meet the spouse's [minimum] reasonable needs by
4-19 obtaining appropriate employment or developing an appropriate
4-20 skill, unless the ability of the spouse to provide for the spouse's
4-21 [minimum] reasonable needs through employment is substantially or
4-22 totally diminished because of:
4-23 (A) physical or mental disability;
4-24 (B) duties as the custodian of an infant or
4-25 young child; or
4-26 (C) another compelling impediment to gainful
4-27 employment.
5-1 (b) If a spouse seeking maintenance is unable to support
5-2 himself or herself through appropriate employment because of an
5-3 incapacitating physical or mental disability, or if maintenance is
5-4 awarded under Section 8.002(4), the court may order maintenance for
5-5 an indefinite period for as long as the disability continues.
5-6 (c) The court may order periodic review of its order under
5-7 Subsection (b), on the request of either party or on its own
5-8 motion, to determine whether the order continues to be appropriate
5-9 [disability is continuing]. The continuation of spousal
5-10 maintenance under Subsection (b) [these circumstances] is subject
5-11 to a motion to modify as provided by Section 8.008.
5-12 SECTION 5. Section 8.006(b), Family Code, is amended to read
5-13 as follows:
5-14 (b) The court shall set the amount that a spouse is required
5-15 to pay in a maintenance order to provide for the [minimum]
5-16 reasonable needs of the spouse receiving the maintenance under the
5-17 order, considering employment or property received in the
5-18 dissolution of the marriage or otherwise owned by the spouse
5-19 receiving the maintenance that contributes to the [minimum]
5-20 reasonable needs of that spouse.
5-21 SECTION 6. Section 8.008(a), Family Code, is amended to read
5-22 as follows:
5-23 (a) The amount of maintenance specified in a court order or
5-24 the portion of a decree that provides for the support of a former
5-25 spouse may be modified [reduced] by the filing of a motion in the
5-26 court that originally rendered the order. A party affected by the
5-27 order or the portion of the decree to be modified may file the
6-1 motion.
6-2 SECTION 7. Section 8.009, Family Code, is amended to read as
6-3 follows:
6-4 Sec. 8.009. ENFORCEMENT OF MAINTENANCE ORDER. (a) The
6-5 court may enforce by contempt the court's maintenance order or an
6-6 agreement for the payment of maintenance voluntarily entered into
6-7 between the parties and approved by the court.
6-8 (b) In a [On the] suit to enforce a maintenance order
6-9 brought by [of] a party entitled to receive maintenance payments,
6-10 the court shall [may] render judgment against a defaulting party
6-11 for an amount unpaid and owing after notice by service of citation,
6-12 answer, if any, and a hearing in which the court finds [finding]
6-13 that the defaulting party has failed or refused to carry out the
6-14 terms of the order. The judgment may be enforced by any means
6-15 available for the enforcement of judgment for debts.
6-16 (c) A maintenance payment not timely made constitutes a
6-17 final judgement for the amount due and owing, including interest as
6-18 provided by this section.
6-19 (d) Interest accrues on maintenance payments at the rate of
6-20 12 percent simple interest per year from the date the payment is
6-21 delinquent until the date the payment is made. A payment is
6-22 delinquent for the purpose of accrual of interest if the payment is
6-23 not received before the 31st day after the date the payment is
6-24 required to have been made.
6-25 (e) It is an affirmative defense to an allegation of
6-26 contempt of court or the violation of a condition of probation
6-27 requiring payment of court-ordered maintenance that the obligor:
7-1 (1) lacked the ability to provide maintenance in the
7-2 amount ordered;
7-3 (2) lacked property that could be sold, mortgaged, or
7-4 otherwise pledged to raise the funds needed;
7-5 (3) attempted unsuccessfully to borrow the needed
7-6 funds; and
7-7 (4) did not know of a source from which the money
7-8 could have been borrowed or otherwise legally obtained.
7-9 (f) [(d)] The issue of the existence of an affirmative
7-10 defense does not arise unless evidence is admitted supporting the
7-11 defense. If the issue of the existence of an affirmative defense
7-12 arises, an obligor must prove the affirmative defense by a
7-13 preponderance of the evidence.
7-14 SECTION 8. (a) This Act takes effect September 1, 1999,
7-15 and, except as provided by Subsection (b) of this section, applies
7-16 only to an order for maintenance that is rendered on or after that
7-17 date or rendered before the effective date of this Act and modified
7-18 on or after that date. Any other order rendered before the
7-19 effective date of this Act is governed by the law in effect on the
7-20 date the order was rendered, and the former law is continued in
7-21 effect for that purpose.
7-22 (b) The change in law made by this Act to Section 8.009,
7-23 Family Code, applies to a maintenance payment that becomes due on
7-24 or after the effective date of this Act. A payment that becomes
7-25 due before the effective date of this Act is governed by the law in
7-26 effect on the date the payment became due, and the former law is
7-27 continued in effect for that purpose.
8-1 SECTION 9. The importance of this legislation and the
8-2 crowded condition of the calendars in both houses create an
8-3 emergency and an imperative public necessity that the
8-4 constitutional rule requiring bills to be read on three several
8-5 days in each house be suspended, and this rule is hereby suspended.