By Thompson H.B. No. 691
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to income withholding for spousal maintenance; providing a
1-3 penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 8, Family Code, is amended to read as
1-6 follows:
1-7 CHAPTER 8. MAINTENANCE
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 8.001. DEFINITIONS [DEFINITION]. In this chapter:
1-10 (1) "Maintenance"[, "maintenance"] means an award in a
1-11 suit for dissolution of a marriage of periodic payments from the
1-12 future income of one spouse for the support of the other spouse.
1-13 (2) "Notice of application for a writ of withholding"
1-14 means the document delivered to an obligor and filed with the court
1-15 as required by this chapter for the nonjudicial determination of
1-16 arrears and initiation of withholding for spousal maintenance.
1-17 (3) "Obligee" means a person entitled to receive
1-18 payments under the terms of an order for spousal maintenance.
1-19 (4) "Obligor" means a person required to make periodic
1-20 payments under the terms of an order for spousal maintenance.
1-21 (5) "Writ of withholding" means the document issued by
1-22 the clerk of a court and delivered to an employer, directing that
1-23 earnings be withheld for payment of spousal maintenance as provided
1-24 by this chapter.
2-1 (Sections 8.002-8.050 reserved for expansion
2-2 SUBCHAPTER B. COURT-ORDERED MAINTENANCE
2-3 Sec. 8.051 [8.002]. ELIGIBILITY FOR MAINTENANCE; COURT
2-4 ORDER. [(a)] In a suit for dissolution of a marriage or in a
2-5 proceeding for maintenance in a court with personal jurisdiction
2-6 over both former spouses following the dissolution of their
2-7 marriage by a court that lacked personal jurisdiction over an
2-8 absent spouse, the court may order maintenance for either spouse
2-9 only if:
2-10 (1) the spouse from whom maintenance is requested was
2-11 convicted of or received deferred adjudication for a criminal
2-12 offense that also constitutes an act of family violence under Title
2-13 4 and the offense occurred:
2-14 (A) within two years before the date on which a
2-15 suit for dissolution of the marriage is filed; or
2-16 (B) while the suit is pending; or
2-17 (2) the duration of the marriage was 10 years or
2-18 longer, the spouse seeking maintenance lacks sufficient property,
2-19 including property distributed to the spouse under this code, to
2-20 provide for the spouse's minimum reasonable needs, as limited by
2-21 Section 8.054 [8.005], and the spouse seeking maintenance:
2-22 (A) is unable to support himself or herself
2-23 through appropriate employment because of an incapacitating
2-24 physical or mental disability;
2-25 (B) is the custodian of a child who requires
2-26 substantial care and personal supervision because a physical or
2-27 mental disability makes it necessary, taking into consideration the
3-1 needs of the child, that the spouse not be employed outside the
3-2 home; or
3-3 (C) clearly lacks earning ability in the labor
3-4 market adequate to provide support for the spouse's minimum
3-5 reasonable needs, as limited by Section 8.054 [8.005].
3-6 [(b) A court may enforce an order for spousal maintenance
3-7 under this section by ordering garnishment of the wages of the
3-8 person ordered to pay the maintenance or by any other means
3-9 available under Section 8.009.]
3-10 Sec. 8.052 [8.003]. FACTORS IN DETERMINING MAINTENANCE. A
3-11 court that determines that a spouse is eligible to receive
3-12 maintenance under this chapter shall determine the nature, amount,
3-13 duration, and manner of periodic payments by considering all
3-14 relevant factors, including:
3-15 (1) the financial resources of the spouse seeking
3-16 maintenance, including the community and separate property and
3-17 liabilities apportioned to that spouse in the dissolution
3-18 proceeding, and that spouse's ability to meet the spouse's needs
3-19 independently;
3-20 (2) the education and employment skills of the
3-21 spouses, the time necessary to acquire sufficient education or
3-22 training to enable the spouse seeking maintenance to find
3-23 appropriate employment, the availability of that education or
3-24 training, and the feasibility of that education or training;
3-25 (3) the duration of the marriage;
3-26 (4) the age, employment history, earning ability, and
3-27 physical and emotional condition of the spouse seeking maintenance;
4-1 (5) the ability of the spouse from whom maintenance is
4-2 requested to meet that spouse's personal needs and to provide
4-3 periodic child support payments, if applicable, while meeting the
4-4 personal needs of the spouse seeking maintenance;
4-5 (6) acts by either spouse resulting in excessive or
4-6 abnormal expenditures or destruction, concealment, or fraudulent
4-7 disposition of community property, joint tenancy, or other property
4-8 held in common;
4-9 (7) the comparative financial resources of the
4-10 spouses, including medical, retirement, insurance, or other
4-11 benefits, and the separate property of each spouse;
4-12 (8) the contribution by one spouse to the education,
4-13 training, or increased earning power of the other spouse;
4-14 (9) the property brought to the marriage by either
4-15 spouse;
4-16 (10) the contribution of a spouse as homemaker;
4-17 (11) marital misconduct of the spouse seeking
4-18 maintenance; and
4-19 (12) the efforts of the spouse seeking maintenance to
4-20 pursue available employment counseling as provided by Chapter 304,
4-21 Labor Code.
4-22 Sec. 8.053 [8.004]. PRESUMPTION. (a) Except as provided by
4-23 Subsection (b), it is presumed that maintenance is not warranted
4-24 unless the spouse seeking maintenance has exercised diligence in:
4-25 (1) seeking suitable employment; or
4-26 (2) developing the necessary skills to become
4-27 self-supporting during a period of separation and during the time
5-1 the suit for dissolution of the marriage is pending.
5-2 (b) This section does not apply to a spouse who is not able
5-3 to satisfy the presumption in Subsection (a) because of an
5-4 incapacitating physical or mental disability.
5-5 Sec. 8.054 [8.005]. DURATION OF MAINTENANCE ORDER. (a)
5-6 Except as provided by Subsection (b), a court:
5-7 (1) may not order maintenance that remains in effect
5-8 for more than three years after the date of the order; and
5-9 (2) shall limit the duration of a maintenance order to
5-10 the shortest reasonable period that allows the spouse seeking
5-11 maintenance to meet the spouse's minimum reasonable needs by
5-12 obtaining appropriate employment or developing an appropriate
5-13 skill, unless the ability of the spouse to provide for the spouse's
5-14 minimum reasonable needs through employment is substantially or
5-15 totally diminished because of:
5-16 (A) physical or mental disability;
5-17 (B) duties as the custodian of an infant or
5-18 young child; or
5-19 (C) another compelling impediment to gainful
5-20 employment.
5-21 (b) If a spouse seeking maintenance is unable to support
5-22 himself or herself through appropriate employment because of an
5-23 incapacitating physical or mental disability, the court may order
5-24 maintenance for an indefinite period for as long as the disability
5-25 continues. The court may order periodic review of its order, on
5-26 the request of either party or on its own motion, to determine
5-27 whether the disability is continuing. The continuation of spousal
6-1 maintenance under these circumstances is subject to a motion to
6-2 modify as provided by Section 8.057 [8.008].
6-3 Sec. 8.055 [8.006]. AMOUNT OF MAINTENANCE. (a) A court may
6-4 not order maintenance that requires an obligor [a spouse] to pay
6-5 monthly more than the lesser of:
6-6 (1) $2,500; or
6-7 (2) 20 percent of the spouse's average monthly gross
6-8 income.
6-9 (b) The court shall set the amount that an obligor [a
6-10 spouse] is required to pay in a maintenance order to provide for
6-11 the minimum reasonable needs of the obligee [spouse receiving the
6-12 maintenance under the order], considering employment or property
6-13 received in the dissolution of the marriage or otherwise owned by
6-14 the obligee [spouse receiving the maintenance] that contributes to
6-15 the minimum reasonable needs of the obligee [that spouse].
6-16 (c) Department of Veterans Affairs service-connected
6-17 disability compensation, social security benefits and disability
6-18 benefits, and workers' compensation benefits are excluded from
6-19 maintenance.
6-20 Sec. 8.056 [8.007]. TERMINATION. (a) The obligation to pay
6-21 future maintenance terminates on the death of either party or on
6-22 the remarriage of the obligee [party receiving maintenance].
6-23 (b) After a hearing, the court shall terminate the
6-24 maintenance order if the obligee [party receiving maintenance]
6-25 cohabits with another person in a permanent place of abode on a
6-26 continuing, conjugal basis.
6-27 Sec. 8.057 [8.008]. MODIFICATION OF MAINTENANCE ORDER. (a)
7-1 The amount of maintenance specified in a court order or the portion
7-2 of a decree that provides for the support of a former spouse may be
7-3 reduced by the filing of a motion in the court that originally
7-4 rendered the order. A party affected by the order or the portion
7-5 of the decree to be modified may file the motion.
7-6 (b) Notice of a motion to modify maintenance and the
7-7 response, if any, are governed by the Texas Rules of Civil
7-8 Procedure applicable to the filing of an original lawsuit. Notice
7-9 must be given by service of citation, and a response must be in the
7-10 form of an answer due on or before 10 a.m. of the first Monday
7-11 after 20 days after the date of service. A court shall set a
7-12 hearing on the motion in the manner provided by Rule 245, Texas
7-13 Rules of Civil Procedure.
7-14 (c) After a hearing, the court may modify an original or
7-15 modified order or portion of a decree providing for maintenance on
7-16 a proper showing of a material and substantial change in
7-17 circumstances of either party. The court shall apply the
7-18 modification only to payment accruing after the filing of the
7-19 motion to modify.
7-20 (d) A loss of employment or circumstances that render a
7-21 former spouse unable to support himself or herself through
7-22 appropriate employment by reason of incapacitating physical or
7-23 mental disability that occur after the divorce or annulment are not
7-24 grounds for the institution of spousal maintenance for the benefit
7-25 of the former spouse.
7-26 Sec. 8.058. MAINTENANCE ARREARAGES. A spousal maintenance
7-27 payment not timely made constitutes an arrearage.
8-1 Sec. 8.059 [8.009]. ENFORCEMENT OF MAINTENANCE ORDER. (a)
8-2 The court may enforce by contempt the court's maintenance order or
8-3 an agreement for the payment of maintenance voluntarily entered
8-4 into between the parties and approved by the court.
8-5 (b) On the suit to enforce by an obligee [of a party
8-6 entitled to receive maintenance payments], the court may render
8-7 judgment against a defaulting party for the [an] amount of
8-8 arrearages [unpaid and owing] after notice by service of citation,
8-9 answer, if any, and a hearing finding that the defaulting party has
8-10 failed or refused to carry out the terms of the order. The
8-11 judgment may be enforced by any means available for the enforcement
8-12 of judgment for debts.
8-13 (c) It is an affirmative defense to an allegation of
8-14 contempt of court or the violation of a condition of probation
8-15 requiring payment of court-ordered maintenance that the obligor:
8-16 (1) lacked the ability to provide maintenance in the
8-17 amount ordered;
8-18 (2) lacked property that could be sold, mortgaged, or
8-19 otherwise pledged to raise the funds needed;
8-20 (3) attempted unsuccessfully to borrow the needed
8-21 funds; and
8-22 (4) did not know of a source from which the money
8-23 could have been borrowed or otherwise legally obtained.
8-24 (d) The issue of the existence of an affirmative defense
8-25 does not arise unless evidence is admitted supporting the defense.
8-26 If the issue of the existence of an affirmative defense arises, an
8-27 obligor must prove the affirmative defense by a preponderance of
9-1 the evidence.
9-2 (e) A court may enforce an order for spousal maintenance
9-3 under this chapter by ordering garnishment of the obligor's wages
9-4 or by any other means available under this section.
9-5 Sec. 8.060 [8.010]. PUTATIVE SPOUSE. In a suit to declare a
9-6 marriage void, a putative spouse who did not have knowledge of an
9-7 existing impediment to a valid marriage may be awarded maintenance
9-8 if otherwise qualified to receive maintenance under this chapter.
9-9 Sec. 8.061 [8.011]. UNMARRIED COHABITANTS. An order for
9-10 maintenance is not authorized between unmarried cohabitants under
9-11 any circumstances.
9-12 (Sections 8.062-8.100 reserved for expansion
9-13 SUBCHAPTER C. INCOME WITHHOLDING
9-14 Sec. 8.101. INCOME WITHHOLDING; GENERAL RULE. (a) In a
9-15 proceeding in which periodic payments of spousal maintenance are
9-16 ordered, modified, or enforced, the court may order that income be
9-17 withheld from the disposable earnings of the obligor as provided by
9-18 this chapter.
9-19 (b) This subchapter does not apply to contractual alimony or
9-20 spousal maintenance, regardless of whether the alimony or
9-21 maintenance is taxable, unless:
9-22 (1) the contract specifically permits income
9-23 withholding; or
9-24 (2) the alimony or maintenance payments are not timely
9-25 made under the terms of the contract.
9-26 (c) An order or writ of withholding for spousal maintenance
9-27 may be combined with an order or writ of withholding for child
10-1 support only if the obligee has been appointed managing conservator
10-2 of the child for whom the child support is owed and is the
10-3 conservator with whom the child primarily resides.
10-4 (d) An order or writ of withholding that combines
10-5 withholding for spousal maintenance and child support must:
10-6 (1) require that the withheld amounts be paid to the
10-7 appropriate place of payment under Section 154.004;
10-8 (2) be in the form prescribed by the Title IV-D agency
10-9 under Section 158.106;
10-10 (3) clearly indicate the amounts withheld that are to
10-11 be applied to current spousal maintenance and to any maintenance
10-12 arrearages; and
10-13 (4) subject to the maximum withholding allowed under
10-14 Section 8.106, order that withheld income be applied in the
10-15 following order of priority:
10-16 (A) current child support;
10-17 (B) current spousal maintenance;
10-18 (C) child support arrearages; and
10-19 (D) spousal maintenance arrearages.
10-20 (e) Garnishment for the purposes of spousal maintenance does
10-21 not apply to unemployment insurance benefit payments.
10-22 Sec. 8.102. WITHHOLDING FOR ARREARAGES IN ADDITION TO
10-23 CURRENT SPOUSAL MAINTENANCE. (a) The court may order that, in
10-24 addition to income withheld for current spousal maintenance, income
10-25 be withheld from the disposable earnings of the obligor to be
10-26 applied toward the liquidation of any arrearages.
10-27 (b) The additional amount withheld to be applied toward
11-1 arrearages must be whichever of the following amounts will
11-2 discharge the arrearages in the least amount of time:
11-3 (1) an amount sufficient to discharge the arrearages
11-4 in not more than two years; or
11-5 (2) 20 percent of the amount withheld for current
11-6 maintenance.
11-7 Sec. 8.103. WITHHOLDING FOR ARREARAGES WHEN CURRENT
11-8 MAINTENANCE IS NOT DUE. A court may order income withholding to be
11-9 applied toward arrearages in an amount sufficient to discharge
11-10 those arrearages in not more than two years if current spousal
11-11 maintenance is no longer owed.
11-12 Sec. 8.104. WITHHOLDING TO SATISFY JUDGMENT FOR ARREARAGES.
11-13 The court, in rendering a cumulative judgment for arrearages, may
11-14 order that a reasonable amount of income be withheld from the
11-15 disposable earnings of the obligor to be applied toward the
11-16 satisfaction of the judgment.
11-17 Sec. 8.105. PRIORITY OF WITHHOLDING. An order or writ of
11-18 withholding under this chapter has priority over any garnishment,
11-19 attachment, execution, or other order affecting disposable
11-20 earnings, except for an order or writ of withholding for child
11-21 support under Chapter 158.
11-22 Sec. 8.106. MAXIMUM AMOUNT WITHHELD FROM EARNINGS. An order
11-23 or writ of withholding must direct that an obligor's employer
11-24 withhold from the obligor's disposable earnings the lesser of:
11-25 (1) the amount specified in the order or writ; or
11-26 (2) an amount that, when added to the amount of income
11-27 being withheld by the employer for child support, is equal to 50
12-1 percent of the obligor's disposable earnings.
12-2 Sec. 8.107. ORDER OR WRIT BINDING ON EMPLOYER DOING BUSINESS
12-3 IN THIS STATE. An order or writ of withholding issued under this
12-4 chapter and delivered to an employer doing business in this state
12-5 is binding on the employer without regard to whether the obligor
12-6 resides or works outside this state.
12-7 Sec. 8.108. VOLUNTARY WRIT OF WITHHOLDING BY OBLIGOR. (a)
12-8 An obligor may file with the clerk of the court a notarized or
12-9 acknowledged request signed by the obligor and the obligee for the
12-10 issuance and delivery to the obligor's employer of a writ of
12-11 withholding. The obligor may file the request under this section
12-12 regardless of whether a writ or order has been served on any party
12-13 or whether the obligor owes arrearages.
12-14 (b) On receipt of a request under this section, the clerk
12-15 shall issue and deliver a writ of withholding in the manner
12-16 provided by this subchapter.
12-17 (c) An employer who receives a writ of withholding issued
12-18 under this section may request a hearing in the same manner and
12-19 according to the same terms provided by Section 8.205.
12-20 (d) An obligor whose employer receives a writ of withholding
12-21 issued under this section may request a hearing in the manner
12-22 provided by Section 8.258.
12-23 (e) An obligee may contest a writ of income withholding
12-24 issued under this section by requesting, not later than the 180th
12-25 day after the date on which the obligee discovers that the writ was
12-26 issued, a hearing to be conducted in the manner provided by Section
12-27 8.258 for a hearing on a motion to stay.
13-1 (f) A writ of withholding under this section may not reduce
13-2 the total amount of spousal maintenance, including arrearages, owed
13-3 by the obligor.
13-4 (Sections 8.109-8.150 reserved for expansion
13-5 SUBCHAPTER D. PROCEDURE
13-6 Sec. 8.151. TIME LIMIT. The court may issue an order or writ
13-7 for withholding under this chapter at any time before all spousal
13-8 maintenance and arrearages are paid.
13-9 Sec. 8.152. CONTENTS OF ORDER OF WITHHOLDING. (a) An order
13-10 of withholding must state:
13-11 (1) the style, cause number, and court having
13-12 jurisdiction to enforce the order;
13-13 (2) the name, address, and, if available, the social
13-14 security number of the obligor;
13-15 (3) the amount and duration of the spousal maintenance
13-16 payments, including the amount and duration of withholding for
13-17 arrearages, if any; and
13-18 (4) the name, address, and, if available, the social
13-19 security number of the obligee.
13-20 (b) The order for withholding must require the obligor to
13-21 notify the court promptly of any material change affecting the
13-22 order, including a change of employer.
13-23 (c) On request by an obligee, the court may exclude from an
13-24 order of withholding the obligee's address and social security
13-25 number if the obligee or a member of the obligee's family or
13-26 household is a victim of family violence and is the subject of a
13-27 protective order to which the obligor is also subject. On granting
14-1 a request under this subsection, the court shall order the clerk
14-2 to:
14-3 (1) strike the address and social security number
14-4 required by Subsection (a) from the order or writ of withholding;
14-5 and
14-6 (2) maintain a confidential record of the obligee's
14-7 address and social security number to be used only by the court.
14-8 Sec. 8.153. REQUEST FOR ISSUANCE OF ORDER OR WRIT OF
14-9 WITHHOLDING. An obligor or obligee may file with the clerk of the
14-10 court a request for issuance of an order or writ of withholding.
14-11 Sec. 8.154. ISSUANCE AND DELIVERY OF ORDER OR WRIT OF
14-12 WITHHOLDING. (a) On receipt of a request for issuance of an order
14-13 or writ of withholding, the clerk of the court shall deliver a
14-14 certified copy of the order or writ to the obligor's current
14-15 employer or to any subsequent employer of the obligor. The clerk
14-16 shall attach a copy of Subchapter E to the order or writ.
14-17 (b) Not later than the fourth working day after the date the
14-18 order is signed or the request is filed, whichever is later, the
14-19 clerk shall issue and deliver the certified copy of the order or
14-20 writ by:
14-21 (1) certified or registered mail, return receipt
14-22 requested, to the employer; or
14-23 (2) service of citation to:
14-24 (A) the person authorized to receive service of
14-25 process for the employer in civil cases generally; or
14-26 (B) a person designated by the employer by
14-27 written notice to the clerk to receive orders or notices of income
15-1 withholding.
15-2 (Sections 8.155-8.200 reserved for expansion
15-3 SUBCHAPTER E. RIGHTS AND DUTIES OF EMPLOYER
15-4 Sec. 8.201. ORDER OR WRIT BINDING ON EMPLOYER. (a) An
15-5 employer required to withhold income from earnings under this
15-6 chapter is not entitled to notice of the proceedings before the
15-7 order of withholding is rendered or writ of withholding is issued.
15-8 (b) An order or writ of withholding is binding on an
15-9 employer regardless of whether the employer is specifically named
15-10 in the order or writ.
15-11 Sec. 8.202. EFFECTIVE DATE AND DURATION OF INCOME
15-12 WITHHOLDING. An employer shall begin to withhold income in
15-13 accordance with an order or writ of withholding not later than the
15-14 first pay period after the date the order or writ was delivered to
15-15 the employer. The employer shall continue to withhold income as
15-16 required by the order or writ as long as the obligor is employed by
15-17 the employer.
15-18 Sec. 8.203. REMITTING WITHHELD PAYMENTS. (a) The employer
15-19 shall remit to the person or office named in the order or writ of
15-20 withholding the amount of income withheld from an obligor on each
15-21 pay date. The remittance must include the date on which the income
15-22 withholding occurred.
15-23 (b) The employer shall include with each remittance:
15-24 (1) the cause number of the suit under which income
15-25 withholding is required;
15-26 (2) the payor's name; and
15-27 (3) the payee's name, unless the remittance is made by
16-1 electronic funds transfer.
16-2 Sec. 8.204. EMPLOYER MAY DEDUCT FEE FROM EARNINGS. An
16-3 employer may deduct an administrative fee of not more than $5 each
16-4 month from the obligor's disposable earnings in addition to the
16-5 amount withheld as spousal maintenance.
16-6 Sec. 8.205. HEARING REQUESTED BY EMPLOYER. (a) Not later
16-7 than the 20th day after the date an order or writ of withholding is
16-8 delivered to an employer, the employer may file with the court a
16-9 motion for a hearing on the applicability of the order or writ to
16-10 the employer.
16-11 (b) The hearing under this section must be held on or before
16-12 the 15th day after the date the motion is made.
16-13 (c) An order or writ of withholding is binding and the
16-14 employer shall continue to withhold income and remit the amount
16-15 withheld pending further order of the court.
16-16 Sec. 8.206. LIABILITY AND OBLIGATION OF EMPLOYER FOR
16-17 PAYMENTS. (a) An employer who complies with an order or writ of
16-18 withholding under this chapter is not liable to the obligor for the
16-19 amount of income withheld and remitted as required by the order or
16-20 writ.
16-21 (b) An employer who receives, but does not comply with, an
16-22 order or writ of withholding is liable to:
16-23 (1) the obligee for any amount of spousal maintenance
16-24 not paid in compliance with the order or writ;
16-25 (2) the obligor for any amount withheld from the
16-26 obligor's disposable earnings, but not remitted to the obligee; and
16-27 (3) the obligee or obligor for reasonable attorney's
17-1 fees and court costs incurred in recovering an amount described by
17-2 Subdivision (1) or (2).
17-3 (c) An employer shall comply with an order of withholding
17-4 for spousal maintenance or alimony issued in another state that
17-5 appears regular on its face in the same manner as an order issued
17-6 by a tribunal of this state. The employer shall notify the
17-7 employee of the order and comply with the order in the manner
17-8 provided by Subchapter F, Chapter 159, with respect to an order of
17-9 withholding for child support issued by another state. The
17-10 employer may contest the order of withholding in the manner
17-11 provided by that subchapter with respect to an order of withholding
17-12 for child support issued by another state.
17-13 Sec. 8.207. EMPLOYER RECEIVING MULTIPLE ORDERS OR WRITS. (a)
17-14 An employer who receives more than one order or writ of withholding
17-15 to withhold income from the same obligor shall withhold the
17-16 combined amounts due under each order or writ unless the combined
17-17 amounts due exceed the maximum total amount of allowed income
17-18 withholding under Section 8.106.
17-19 (b) If the combined amounts to be withheld under multiple
17-20 orders or writs for the same obligor exceed the maximum total
17-21 amount of allowed income withholding under Section 8.106, the
17-22 employer shall pay, until that maximum is reached, in the following
17-23 order of priority:
17-24 (1) an equal amount toward current child support owed
17-25 by the obligor in each order or writ until the employer has
17-26 complied fully with each current child support obligation;
17-27 (2) an equal amount toward current maintenance owed by
18-1 the obligor in each order or writ until the employer has complied
18-2 fully with each current maintenance obligation;
18-3 (3) an equal amount toward child support arrearages
18-4 owed by the obligor in each order or writ until the employer has
18-5 complied fully with each order or writ for child support
18-6 arrearages; and
18-7 (4) an equal amount toward maintenance arrearages owed
18-8 by the obligor in each order or writ until the employer has
18-9 complied fully with each order or writ for spousal maintenance
18-10 arrearages.
18-11 Sec. 8.208. EMPLOYER'S LIABILITY FOR DISCRIMINATORY HIRING
18-12 OR DISCHARGE. (a) An employer may not use an order or writ of
18-13 withholding as grounds in whole or part for the termination of
18-14 employment of, or for any other disciplinary action against, an
18-15 employee.
18-16 (b) An employer may not refuse to hire an employee because
18-17 of an order or writ of withholding.
18-18 (c) An employer who intentionally discharges an employee in
18-19 violation of this section is liable to that employee for current
18-20 wages, other employment benefits, and reasonable attorney's fees
18-21 and court costs incurred in enforcing the employee's rights.
18-22 (d) In addition to liability imposed under Subsection (c),
18-23 the court shall order with respect to an employee whose employment
18-24 was suspended or terminated in violation of this section
18-25 appropriate injunctive relief, including reinstatement of:
18-26 (1) the employee's position with the employer; and
18-27 (2) fringe benefits or seniority lost as a result of
19-1 the suspension or termination.
19-2 (e) An employee may bring an action to enforce the
19-3 employee's rights under this section.
19-4 Sec. 8.209. PENALTY FOR NONCOMPLIANCE. (a) In addition to
19-5 the civil remedies provided by this subchapter or any other remedy
19-6 provided by law, an employer who knowingly violates this chapter by
19-7 failing to withhold income for spousal maintenance or to remit
19-8 withheld income in accordance with an order or writ of withholding
19-9 issued under this chapter commits an offense.
19-10 (b) An offense under this section is punishable by a fine
19-11 not to exceed $200 for each violation.
19-12 Sec. 8.210. NOTICE OF TERMINATION OF EMPLOYMENT AND OF NEW
19-13 EMPLOYMENT. (a) An obligor who terminates employment with an
19-14 employer who has been withholding income and the obligor's employer
19-15 shall each notify the court and the obligee of:
19-16 (1) the termination of employment not later than the
19-17 seventh day after the date of termination;
19-18 (2) the obligor's last known address; and
19-19 (3) the name and address of the obligor's new
19-20 employer, if known.
19-21 (b) The obligor shall inform a subsequent employer of the
19-22 order or writ of withholding after obtaining employment.
19-23 (Sections 8.211-8.250 reserved for expansion
19-24 SUBCHAPTER F. WRIT OF WITHHOLDING ISSUED BY CLERK
19-25 Sec. 8.251. NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING;
19-26 FILING. (a) An obligor or obligee may file a notice of application
19-27 for a writ of withholding if income withholding was not ordered at
20-1 the time spousal maintenance was ordered.
20-2 (b) The obligor or obligee may file the notice of
20-3 application for a writ of withholding in the court that ordered the
20-4 spousal maintenance under Subchapter B.
20-5 Sec. 8.252. CONTENTS OF NOTICE OF APPLICATION FOR WRIT OF
20-6 WITHHOLDING. The notice of application for a writ of withholding
20-7 must be verified and:
20-8 (1) state the amount of monthly maintenance due,
20-9 including the amount of arrearages or anticipated arrearages, and
20-10 the amount of disposable earnings to be withheld under a writ of
20-11 withholding;
20-12 (2) state that the withholding applies to each current
20-13 or subsequent employer or period of employment;
20-14 (3) state that the obligor's employer will be notified
20-15 to begin the withholding if the obligor does not contest the
20-16 withholding on or before the 10th day after the date the obligor
20-17 receives the notice;
20-18 (4) describe the procedures for contesting the
20-19 issuance and delivery of a writ of withholding;
20-20 (5) state that the obligor will be provided an
20-21 opportunity for a hearing not later than the 30th day after the
20-22 date of receipt of the notice of contest if the obligor contests
20-23 the withholding;
20-24 (6) state that the sole ground for successfully
20-25 contesting the issuance of a writ of withholding is a dispute
20-26 concerning the identity of the obligor or the existence or amount
20-27 of the arrearages;
21-1 (7) describe the actions that may be taken if the
21-2 obligor contests the notice of application for a writ of
21-3 withholding, including the procedures for suspending issuance of a
21-4 writ of withholding; and
21-5 (8) include with the notice a suggested form for the
21-6 motion to stay issuance and delivery of the writ of withholding
21-7 that the obligor may file with the clerk of the appropriate court.
21-8 Sec. 8.253. INTERSTATE REQUEST FOR WITHHOLDING. (a) The
21-9 registration of a foreign order that provides for spousal
21-10 maintenance or alimony as provided in Chapter 159 is sufficient for
21-11 filing a notice of application for a writ of withholding.
21-12 (b) The notice must be filed with the clerk of the court
21-13 having venue as provided in Chapter 159.
21-14 (c) The notice of application for a writ of withholding may
21-15 be delivered to the obligor at the same time that an order is filed
21-16 for registration under Chapter 159.
21-17 Sec. 8.254. ADDITIONAL ARREARAGES. If the notice of
21-18 application for a writ of withholding states that the obligor has
21-19 failed to pay more than one spousal maintenance payment according
21-20 to the terms of the spousal maintenance order, the writ of
21-21 withholding may include withholding for arrearages that accrue
21-22 between the filing of the notice and the date of the hearing or the
21-23 issuance of the writ.
21-24 Sec. 8.255. DELIVERY OF NOTICE OF APPLICATION FOR WRIT OF
21-25 WITHHOLDING; TIME OF DELIVERY. (a) The party who files a notice of
21-26 application for a writ of withholding shall deliver the notice to
21-27 the obligor by:
22-1 (1) first-class or certified mail, return receipt
22-2 requested, addressed to the obligor's last known address or place
22-3 of employment; or
22-4 (2) service of citation as in civil cases generally.
22-5 (b) If the notice is delivered by mail, the party who filed
22-6 the notice shall file with the court a certificate stating the
22-7 name, address, and date the party mailed the notice.
22-8 (c) The notice is considered to have been received by the
22-9 obligor:
22-10 (1) on the date of receipt, if the notice was mailed
22-11 by certified mail;
22-12 (2) on the 10th day after the date the notice was
22-13 mailed, if the notice was mailed by first-class mail; or
22-14 (3) on the date of service, if the notice was
22-15 delivered by service of citation.
22-16 Sec. 8.256. MOTION TO STAY ISSUANCE OF WRIT OF WITHHOLDING.
22-17 (a) The obligor may stay issuance of a writ of withholding by
22-18 filing a motion to stay with the clerk of the court not later than
22-19 the 10th day after the date the notice of application for a writ of
22-20 withholding was received.
22-21 (b) The grounds for filing a motion to stay issuance are
22-22 limited to a dispute concerning the identity of the obligor or the
22-23 existence or the amount of the arrearages.
22-24 (c) The obligor shall verify that the statements of fact in
22-25 the motion to stay issuance of the writ are correct.
22-26 Sec. 8.257. EFFECT OF FILING MOTION TO STAY. If the obligor
22-27 files a motion to stay as provided by Section 8.256, the clerk of
23-1 the court may not deliver the writ of withholding to the obligor's
23-2 employer before a hearing is held.
23-3 Sec. 8.258. HEARING ON MOTION TO STAY. (a) If the obligor
23-4 files a motion to stay as provided by Section 8.256, the court
23-5 shall set a hearing on the motion and the clerk of the court shall
23-6 notify the obligor and obligee of the date, time, and place of the
23-7 hearing.
23-8 (b) The court shall hold a hearing on the motion to stay not
23-9 later than the 30th day after the date the motion was filed unless
23-10 the obligor and obligee agree and waive the right to have the
23-11 motion heard within 30 days.
23-12 (c) After the hearing, the court shall:
23-13 (1) render an order for income withholding that
23-14 includes a determination of any amount of arrearages; or
23-15 (2) grant the motion to stay.
23-16 Sec. 8.259. SPECIAL EXCEPTIONS. (a) A defect in a notice of
23-17 application for a writ of withholding is waived unless the
23-18 respondent specially excepts in writing and cites with
23-19 particularity the alleged defect, obscurity, or other ambiguity in
23-20 the notice.
23-21 (b) A special exception under this section must be heard by
23-22 the court before hearing the motion to stay issuance.
23-23 (c) If the court sustains an exception, the court shall
23-24 provide the party filing the notice an opportunity to refile and
23-25 shall continue the hearing to a specified date without requiring
23-26 additional service.
23-27 Sec. 8.260. WRIT OF WITHHOLDING AFTER ARREARAGES ARE PAID.
24-1 (a) The court may not refuse to order withholding solely on the
24-2 basis that the obligor paid the arrearages after the obligor
24-3 received the notice of application for a writ of withholding.
24-4 (b) The court shall order that a reasonable amount of income
24-5 be withheld and applied toward the liquidation of arrearages, even
24-6 though a judgment confirming arrearages was rendered against the
24-7 obligor.
24-8 Sec. 8.261. REQUEST FOR ISSUANCE AND DELIVERY OF WRIT OF
24-9 WITHHOLDING. (a) If a notice of application for a writ of
24-10 withholding is delivered and the obligor does not file a motion to
24-11 stay within the time provided by Section 8.256, the party who filed
24-12 the notice shall file with the clerk of the court a request for
24-13 issuance of the writ of withholding stating the amount of current
24-14 spousal maintenance, the amount of arrearages, and the amount to be
24-15 withheld from the obligor's income.
24-16 (b) The party who filed the notice may not file a request
24-17 for issuance before the 11th day after the date the obligor
24-18 received the notice of application for a writ of withholding.
24-19 Sec. 8.262. ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING.
24-20 The clerk of the court shall, on the filing of a request for
24-21 issuance of a writ of withholding, issue and deliver the writ as
24-22 provided by Subchapter D not later than the second working day
24-23 after the date the request is filed. The clerk shall charge a fee
24-24 in the amount of $15 for issuing the writ of withholding.
24-25 Sec. 8.263. CONTENTS OF WRIT OF WITHHOLDING. A writ of
24-26 withholding must direct that an obligor's employer or a subsequent
24-27 employer withhold from the obligor's disposable earnings an amount
25-1 for current spousal maintenance and arrearages consistent with this
25-2 chapter.
25-3 Sec. 8.264. EXTENSION OF REPAYMENT SCHEDULE BY PARTY;
25-4 UNREASONABLE HARDSHIP. A party who files a notice of application
25-5 for a writ of withholding and who determines that the schedule for
25-6 repaying arrearages would cause unreasonable hardship to the
25-7 obligor or the obligor's family may extend the payment period in
25-8 the writ.
25-9 Sec. 8.265. REMITTANCE OF AMOUNT TO BE WITHHELD. The
25-10 obligor's employer shall remit the amount withheld to the person or
25-11 office named in the writ on each pay date and shall include with
25-12 the remittance the date on which the withholding occurred.
25-13 Sec. 8.266. FAILURE TO RECEIVE NOTICE OF APPLICATION FOR
25-14 WRIT OF WITHHOLDING. (a) Not later than the 30th day after the
25-15 date of the first pay period after the date the obligor's employer
25-16 receives a writ of withholding, the obligor may file an affidavit
25-17 with the court stating that:
25-18 (1) the obligor did not timely file a motion to stay
25-19 because the obligor did not receive the notice of application for a
25-20 writ of withholding; and
25-21 (2) grounds exist for a motion to stay.
25-22 (b) The obligor may:
25-23 (1) file with the affidavit a motion to withdraw the
25-24 writ of withholding; and
25-25 (2) request a hearing on the applicability of the
25-26 writ.
25-27 (c) Income withholding may not be interrupted until after
26-1 the hearing at which the court renders an order denying or
26-2 modifying withholding.
26-3 Sec. 8.267. ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING TO
26-4 SUBSEQUENT EMPLOYER. (a) After the clerk of the court issues a
26-5 writ of withholding, a party authorized to file a notice of
26-6 application for a writ of withholding under this subchapter may
26-7 deliver a copy of the writ to a subsequent employer of the obligor
26-8 by certified mail.
26-9 (b) Except as provided by an order under Section 8.152, the
26-10 writ of withholding must include the name, address, and signature
26-11 of the party and clearly indicate that the writ is being issued to
26-12 a subsequent employer.
26-13 (c) The party shall file:
26-14 (1) a copy of the writ of withholding with the clerk
26-15 not later than the third working day after the date of delivery of
26-16 the writ to the subsequent employer; and
26-17 (2) the postal return receipt from the delivery to the
26-18 subsequent employer not later than the third working day after the
26-19 date the party receives the receipt.
26-20 (d) The party shall pay the clerk a fee in the amount of $15
26-21 for filing the copy of the writ.
26-22 (Sections 8.268-8.300 reserved for expansion
26-23 SUBCHAPTER G. MODIFICATION, REDUCTION,
26-24 OR TERMINATION OF WITHHOLDING
26-25 Sec. 8.301. AGREEMENT BY PARTIES REGARDING AMOUNT OR
26-26 DURATION OF WITHHOLDING. (a) An obligor and obligee may agree to
26-27 reduce or terminate income withholding for spousal maintenance on
27-1 the occurrence of any contingency stated in the order.
27-2 (b) The obligor and obligee may file a notarized or
27-3 acknowledged request with the clerk of the court under Section
27-4 8.108 for a revised writ of withholding or notice of termination of
27-5 withholding.
27-6 (c) The clerk shall issue and deliver to the obligor's
27-7 employer a writ of withholding that reflects the agreed revision or
27-8 a notice of termination of withholding.
27-9 (d) An agreement by the parties under this section does not
27-10 modify the terms of an order for spousal maintenance.
27-11 Sec. 8.302. MODIFICATIONS TO OR TERMINATION OF WITHHOLDING
27-12 IN VOLUNTARY WITHHOLDING CASES. (a) If an obligor initiates
27-13 voluntary withholding under Section 8.108, the obligee may file
27-14 with the clerk of the court a notarized request signed by the
27-15 obligor and the obligee for the issuance and delivery to the
27-16 obligor of:
27-17 (1) a modified writ of withholding that reduces the
27-18 amount of withholding; or
27-19 (2) a notice of termination of withholding.
27-20 (b) On receipt of a request under this section, the clerk
27-21 shall issue and deliver a modified writ of withholding or notice of
27-22 termination in the manner provided by Section 8.301.
27-23 (c) The clerk may charge a fee in the amount of $15 for
27-24 issuing and delivering the modified writ of withholding or notice
27-25 of termination.
27-26 (d) An obligee may contest a modified writ of withholding or
27-27 notice of termination issued under this section by requesting a
28-1 hearing in the manner provided by Section 8.258 not later than the
28-2 180th day after the date the obligee discovers that the writ or
28-3 notice was issued.
28-4 Sec. 8.303. TERMINATION OF WITHHOLDING IN MANDATORY
28-5 WITHHOLDING CASES. (a) An obligor for whom withholding for
28-6 maintenance owed or withholding for maintenance and child support
28-7 owed is mandatory may file a motion to terminate withholding. On a
28-8 showing by the obligor that the obligor has complied fully with the
28-9 terms of the maintenance or child support order, as applicable, the
28-10 court shall render an order for the issuance and delivery to the
28-11 obligor of a notice of termination of withholding.
28-12 (b) The clerk shall issue and deliver the notice of
28-13 termination ordered under this section to the obligor.
28-14 (c) The clerk may charge a fee in the amount of $15 for
28-15 issuing and delivering the notice.
28-16 Sec. 8.304. DELIVERY OF ORDER OF REDUCTION OR TERMINATION OF
28-17 WITHHOLDING. Any person may deliver to the obligor's employer a
28-18 certified copy of an order that reduces the amount of spousal
28-19 maintenance to be withheld or terminates the withholding.
28-20 Sec. 8.305. LIABILITY OF EMPLOYERS. The provisions of this
28-21 chapter regarding the liability of employers for withholding apply
28-22 to an order that reduces or terminates withholding.
28-23 SECTION 2. Section 158.207, Family Code, is amended by adding
28-24 Subsection (c) to read as follows:
28-25 (c) An employer who receives more than one order or writ of
28-26 withholding that combines withholding for child support and spousal
28-27 maintenance as provided by Section 8.101 shall withhold income and
29-1 pay the amount withheld in accordance with Section 8.207.
29-2 SECTION 3. (a) This Act takes effect September 1, 2001.
29-3 (b) The change in law made by this Act applies to spousal
29-4 maintenance payments regardless of whether the payments become due
29-5 before, on, or after the effective date of this Act.