By Thompson H.B. No. 691
77R1237 KLA-F
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 may be for the combined
9-27 amount of spousal maintenance and child support and may require
10-1 that the combined payments be made through the Title IV-D agency
10-2 only if the obligee has been appointed managing conservator of the
10-3 child for whom the child support is owed and is the conservator
10-4 with whom the child primarily resides.
10-5 Sec. 8.102. WITHHOLDING FOR ARREARAGES IN ADDITION TO
10-6 CURRENT SPOUSAL MAINTENANCE. (a) The court may order that, in
10-7 addition to income withheld for current spousal maintenance, income
10-8 be withheld from the disposable earnings of the obligor to be
10-9 applied toward the liquidation of any arrearages.
10-10 (b) The additional amount withheld to be applied toward
10-11 arrearages must be whichever of the following amounts will
10-12 discharge the arrearages in the least amount of time:
10-13 (1) an amount sufficient to discharge the arrearages
10-14 in not more than two years; or
10-15 (2) 20 percent of the amount withheld for current
10-16 maintenance.
10-17 Sec. 8.103. WITHHOLDING FOR ARREARAGES WHEN CURRENT
10-18 MAINTENANCE IS NOT DUE. A court may order income withholding to be
10-19 applied toward arrearages in an amount sufficient to discharge
10-20 those arrearages in not more than two years if current spousal
10-21 maintenance is no longer owed.
10-22 Sec. 8.104. WITHHOLDING TO SATISFY JUDGMENT FOR ARREARAGES.
10-23 The court, in rendering a cumulative judgment for arrearages, may
10-24 order that a reasonable amount of income be withheld from the
10-25 disposable earnings of the obligor to be applied toward the
10-26 satisfaction of the judgment.
10-27 Sec. 8.105. PRIORITY OF WITHHOLDING. An order or writ of
11-1 withholding under this chapter has priority over any garnishment,
11-2 attachment, execution, or other order affecting disposable
11-3 earnings, except for an order or writ of withholding for child
11-4 support under Chapter 158.
11-5 Sec. 8.106. MAXIMUM AMOUNT WITHHELD FROM EARNINGS. An order
11-6 or writ of withholding must direct that an obligor's employer
11-7 withhold from the obligor's disposable earnings the lesser of:
11-8 (1) the amount specified in the order or writ; or
11-9 (2) an amount that, when added to the amount of income
11-10 being withheld by the employer for child support, is equal to 50
11-11 percent of the obligor's disposable earnings.
11-12 Sec. 8.107. ORDER OR WRIT BINDING ON EMPLOYER DOING BUSINESS
11-13 IN THIS STATE. An order or writ of withholding issued under this
11-14 chapter and delivered to an employer doing business in this state
11-15 is binding on the employer without regard to whether the obligor
11-16 resides or works outside this state.
11-17 Sec. 8.108. VOLUNTARY WRIT OF WITHHOLDING BY OBLIGOR. (a)
11-18 An obligor may file with the clerk of the court a notarized or
11-19 acknowledged request signed by the obligor and the obligee for the
11-20 issuance and delivery to the obligor's employer of a writ of
11-21 withholding. The obligor may file the request under this section
11-22 regardless of whether a writ or order has been served on any party
11-23 or whether the obligor owes arrearages.
11-24 (b) On receipt of a request under this section, the clerk
11-25 shall issue and deliver a writ of withholding in the manner
11-26 provided by this subchapter.
11-27 (c) An employer who receives a writ of withholding issued
12-1 under this section may request a hearing in the same manner and
12-2 according to the same terms provided by Section 8.205.
12-3 (d) An obligor whose employer receives a writ of withholding
12-4 issued under this section may request a hearing in the manner
12-5 provided by Section 8.258.
12-6 (e) An obligee may contest a writ of income withholding
12-7 issued under this section by requesting, not later than the 180th
12-8 day after the date on which the obligee discovers that the writ was
12-9 issued, a hearing to be conducted in the manner provided by Section
12-10 8.258 for a hearing on a motion to stay.
12-11 (f) A writ of withholding under this section may not reduce
12-12 the total amount of spousal maintenance, including arrearages, owed
12-13 by the obligor.
12-14 (Sections 8.109-8.150 reserved for expansion
12-15 SUBCHAPTER D. PROCEDURE
12-16 Sec. 8.151. TIME LIMIT. The court may issue an order or writ
12-17 for withholding under this chapter at any time before all spousal
12-18 maintenance and arrearages are paid.
12-19 Sec. 8.152. CONTENTS OF ORDER OF WITHHOLDING. (a) An order
12-20 of withholding must state:
12-21 (1) the style, cause number, and court having
12-22 jurisdiction to enforce the order;
12-23 (2) the name, address, and, if available, the social
12-24 security number of the obligor;
12-25 (3) the amount and duration of the spousal maintenance
12-26 payments; and
12-27 (4) the name, address, and, if available, the social
13-1 security number of the obligee.
13-2 (b) The order for withholding must require the obligor to
13-3 notify the court promptly of any material change affecting the
13-4 order, including a change of employer.
13-5 Sec. 8.153. REQUEST FOR ISSUANCE OF ORDER OR WRIT OF
13-6 WITHHOLDING. An obligor or obligee may file with the clerk of the
13-7 court a request for issuance of an order or writ of withholding.
13-8 Sec. 8.154. ISSUANCE AND DELIVERY OF ORDER OR WRIT OF
13-9 WITHHOLDING. (a) On receipt of a request for issuance of an order
13-10 or writ of withholding, the clerk of the court shall deliver a
13-11 certified copy of the order or writ to the obligor's current
13-12 employer or to any subsequent employer of the obligor. The clerk
13-13 shall attach a copy of Subchapter E to the order or writ.
13-14 (b) Not later than the fourth working day after the date the
13-15 order is signed or the request is filed, whichever is later, the
13-16 clerk shall issue and deliver the certified copy of the order or
13-17 writ by:
13-18 (1) certified or registered mail, return receipt
13-19 requested, to the employer; or
13-20 (2) service of citation to:
13-21 (A) the person authorized to receive service of
13-22 process for the employer in civil cases generally; or
13-23 (B) a person designated by the employer by
13-24 written notice to the clerk to receive orders or notices of income
13-25 withholding.
13-26 (Sections 8.155-8.200 reserved for expansion
13-27 SUBCHAPTER E. RIGHTS AND DUTIES OF EMPLOYER
14-1 Sec. 8.201. ORDER OR WRIT BINDING ON EMPLOYER. (a) An
14-2 employer required to withhold income from earnings under this
14-3 chapter is not entitled to notice of the proceedings before the
14-4 order of withholding is rendered or writ of withholding is issued.
14-5 (b) An order or writ of withholding is binding on an
14-6 employer regardless of whether the employer is specifically named
14-7 in the order or writ.
14-8 Sec. 8.202. EFFECTIVE DATE AND DURATION OF INCOME
14-9 WITHHOLDING. An employer shall begin to withhold income in
14-10 accordance with an order or writ of withholding not later than the
14-11 first pay period after the date the order or writ was delivered to
14-12 the employer. The employer shall continue to withhold income as
14-13 required by the order or writ as long as the obligor is employed by
14-14 the employer.
14-15 Sec. 8.203. REMITTING WITHHELD PAYMENTS. (a) The employer
14-16 shall remit to the person or office named in the order or writ of
14-17 withholding the amount of income withheld from an obligor on each
14-18 pay date. The remittance must include the date on which the income
14-19 withholding occurred.
14-20 (b) The employer shall include with each remittance:
14-21 (1) the cause number of the suit under which income
14-22 withholding is required;
14-23 (2) the payor's name; and
14-24 (3) the payee's name, unless the remittance is made by
14-25 electronic funds transfer.
14-26 Sec. 8.204. EMPLOYER MAY DEDUCT FEE FROM EARNINGS. An
14-27 employer may deduct an administrative fee of not more than $5 each
15-1 month from the obligor's disposable earnings in addition to the
15-2 amount withheld as spousal maintenance.
15-3 Sec. 8.205. HEARING REQUESTED BY EMPLOYER. (a) Not later
15-4 than the 20th day after the date an order or writ of withholding is
15-5 delivered to an employer, the employer may file with the court a
15-6 motion for a hearing on the applicability of the order or writ to
15-7 the employer.
15-8 (b) The hearing under this section must be held on or before
15-9 the 15th day after the date the motion is made.
15-10 (c) An order or writ of withholding is binding and the
15-11 employer shall continue to withhold income and remit the amount
15-12 withheld pending further order of the court.
15-13 Sec. 8.206. LIABILITY AND OBLIGATION OF EMPLOYER FOR
15-14 PAYMENTS. (a) An employer who complies with an order or writ of
15-15 withholding under this chapter is not liable to the obligor for the
15-16 amount of income withheld and remitted as required by the order or
15-17 writ.
15-18 (b) An employer who receives, but does not comply with, an
15-19 order or writ of withholding is liable to:
15-20 (1) the obligee for any amount of spousal maintenance
15-21 not paid in compliance with the order or writ;
15-22 (2) the obligor for any amount withheld from the
15-23 obligor's disposable earnings, but not remitted to the obligee; and
15-24 (3) the obligee or obligor for reasonable attorney's
15-25 fees and court costs incurred in recovering an amount described by
15-26 Subdivision (1) or (2).
15-27 (c) An employer shall comply with an order of withholding
16-1 for spousal maintenance or alimony issued in another state that
16-2 appears regular on its face in the same manner as an order issued
16-3 by a tribunal of this state. The employer shall notify the
16-4 employee of the order and comply with the order in the manner
16-5 provided by Subchapter F, Chapter 159, with respect to an order of
16-6 withholding for child support issued by another state. The
16-7 employer may contest the order of withholding in the manner
16-8 provided by that subchapter with respect to an order of withholding
16-9 for child support issued by another state.
16-10 Sec. 8.207. EMPLOYER RECEIVING MULTIPLE ORDERS OR WRITS. (a)
16-11 An employer who receives more than one order or writ of withholding
16-12 to withhold income from the same obligor shall withhold the
16-13 combined amounts due under each order or writ unless the combined
16-14 amounts due exceed the maximum total amount of allowed income
16-15 withholding under Section 8.106.
16-16 (b) If the combined amounts to be withheld under multiple
16-17 orders or writs for the same obligor exceed the maximum total
16-18 amount of allowed income withholding under Section 8.106, the
16-19 employer shall pay:
16-20 (1) first, the amount of current child support and
16-21 arrearages, if any, owed by the obligor until the employer has
16-22 complied fully with each order or writ for child support;
16-23 (2) second, an equal amount toward current maintenance
16-24 owed by the obligor until the employer has complied fully with each
16-25 order or writ for current maintenance; and
16-26 (3) third, an equal amount toward any arrearages for
16-27 spousal maintenance owed by the obligor until the employer has
17-1 complied fully with each order or writ for spousal maintenance
17-2 arrearages.
17-3 Sec. 8.208. EMPLOYER'S LIABILITY FOR DISCRIMINATORY HIRING
17-4 OR DISCHARGE. (a) An employer may not use an order or writ of
17-5 withholding as grounds in whole or part for the termination of
17-6 employment of, or for any other disciplinary action against, an
17-7 employee.
17-8 (b) An employer may not refuse to hire an employee because
17-9 of an order or writ of withholding.
17-10 (c) An employer who intentionally discharges an employee in
17-11 violation of this section is liable to that employee for current
17-12 wages, other employment benefits, and reasonable attorney's fees
17-13 and court costs incurred in enforcing the employee's rights.
17-14 (d) An employee may bring an action to enforce the
17-15 employee's rights under this section.
17-16 Sec. 8.209. PENALTY FOR NONCOMPLIANCE. (a) In addition to
17-17 the civil remedies provided by this subchapter or any other remedy
17-18 provided by law, an employer who knowingly violates this chapter by
17-19 failing to withhold income for spousal maintenance or to remit
17-20 withheld income in accordance with an order or writ of withholding
17-21 issued under this chapter commits an offense.
17-22 (b) An offense under this section is punishable by a fine
17-23 not to exceed $200 for each violation.
17-24 Sec. 8.210. NOTICE OF TERMINATION OF EMPLOYMENT AND OF NEW
17-25 EMPLOYMENT. (a) An obligor who terminates employment with an
17-26 employer who has been withholding income and the obligor's employer
17-27 shall each notify the court and the obligee of:
18-1 (1) the termination of employment not later than the
18-2 seventh day after the date of termination;
18-3 (2) the obligor's last known address; and
18-4 (3) the name and address of the obligor's new
18-5 employer, if known.
18-6 (b) The obligor shall inform a subsequent employer of the
18-7 order or writ of withholding after obtaining employment.
18-8 (Sections 8.211-8.250 reserved for expansion
18-9 SUBCHAPTER F. WRIT OF WITHHOLDING ISSUED BY CLERK
18-10 Sec. 8.251. NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING;
18-11 FILING. (a) An obligor or obligee may file a notice of application
18-12 for a writ of withholding if income withholding was not ordered at
18-13 the time spousal maintenance was ordered.
18-14 (b) The obligor or obligee may file the notice of
18-15 application for a writ of withholding in the court that ordered the
18-16 spousal maintenance under Subchapter B.
18-17 Sec. 8.252. CONTENTS OF NOTICE OF APPLICATION FOR WRIT OF
18-18 WITHHOLDING. The notice of application for a writ of withholding
18-19 must be verified and:
18-20 (1) state the amount of monthly maintenance due,
18-21 including the amount of arrearages or anticipated arrearages, and
18-22 the amount of disposable earnings to be withheld under a writ of
18-23 withholding;
18-24 (2) state that the withholding applies to each current
18-25 or subsequent employer or period of employment;
18-26 (3) state that the obligor's employer will be notified
18-27 to begin the withholding if the obligor does not contest the
19-1 withholding on or before the 10th day after the date the obligor
19-2 receives the notice;
19-3 (4) describe the procedures for contesting the
19-4 issuance and delivery of a writ of withholding;
19-5 (5) state that the obligor will be provided an
19-6 opportunity for a hearing not later than the 30th day after the
19-7 date of receipt of the notice of contest if the obligor contests
19-8 the withholding;
19-9 (6) state that the sole ground for successfully
19-10 contesting the issuance of a writ of withholding is a dispute
19-11 concerning the identity of the obligor or the existence or amount
19-12 of the arrearages;
19-13 (7) describe the actions that may be taken if the
19-14 obligor contests the notice of application for a writ of
19-15 withholding, including the procedures for suspending issuance of a
19-16 writ of withholding; and
19-17 (8) include with the notice a suggested form for the
19-18 motion to stay issuance and delivery of the writ of withholding
19-19 that the obligor may file with the clerk of the appropriate court.
19-20 Sec. 8.253. INTERSTATE REQUEST FOR WITHHOLDING. (a) The
19-21 registration of a foreign order that provides for spousal
19-22 maintenance or alimony as provided in Chapter 159 is sufficient for
19-23 filing a notice of application for a writ of withholding.
19-24 (b) The notice must be filed with the clerk of the court
19-25 having venue as provided in Chapter 159.
19-26 (c) The notice of application for a writ of withholding may
19-27 be delivered to the obligor at the same time that an order is filed
20-1 for registration under Chapter 159.
20-2 Sec. 8.254. ADDITIONAL ARREARAGES. If the notice of
20-3 application for a writ of withholding states that the obligor has
20-4 failed to pay more than one spousal maintenance payment according
20-5 to the terms of the spousal maintenance order, the writ of
20-6 withholding may include withholding for arrearages that accrue
20-7 between the filing of the notice and the date of the hearing or the
20-8 issuance of the writ.
20-9 Sec. 8.255. DELIVERY OF NOTICE OF APPLICATION FOR WRIT OF
20-10 WITHHOLDING; TIME OF DELIVERY. (a) The party who files a notice of
20-11 application for a writ of withholding shall deliver the notice to
20-12 the obligor by:
20-13 (1) first-class or certified mail, return receipt
20-14 requested, addressed to the obligor's last known address or place
20-15 of employment; or
20-16 (2) service of citation as in civil cases generally.
20-17 (b) If the notice is delivered by mail, the party who filed
20-18 the notice shall file with the court a certificate stating the
20-19 name, address, and date the party mailed the notice.
20-20 (c) The notice is considered to have been received by the
20-21 obligor:
20-22 (1) on the date of receipt, if the notice was mailed
20-23 by certified mail;
20-24 (2) on the 10th day after the date the notice was
20-25 mailed, if the notice was mailed by first-class mail; or
20-26 (3) on the date of service, if the notice was
20-27 delivered by service of citation.
21-1 Sec. 8.256. MOTION TO STAY ISSUANCE OF WRIT OF WITHHOLDING.
21-2 (a) The obligor may stay issuance of a writ of withholding by
21-3 filing a motion to stay with the clerk of the court not later than
21-4 the 10th day after the date the notice of application for a writ of
21-5 withholding was received.
21-6 (b) The grounds for filing a motion to stay issuance are
21-7 limited to a dispute concerning the identity of the obligor or the
21-8 existence or the amount of the arrearages.
21-9 (c) The obligor shall verify that the statements of fact in
21-10 the motion to stay issuance of the writ are correct.
21-11 Sec. 8.257. EFFECT OF FILING MOTION TO STAY. If the obligor
21-12 files a motion to stay as provided by Section 8.256, the clerk of
21-13 the court may not deliver the writ of withholding to the obligor's
21-14 employer before a hearing is held.
21-15 Sec. 8.258. HEARING ON MOTION TO STAY. (a) If the obligor
21-16 files a motion to stay as provided by Section 8.256, the court
21-17 shall set a hearing on the motion and the clerk of the court shall
21-18 notify the obligor and obligee of the date, time, and place of the
21-19 hearing.
21-20 (b) The court shall hold a hearing on the motion to stay not
21-21 later than the 30th day after the date the motion was filed unless
21-22 the obligor and obligee agree and waive the right to have the
21-23 motion heard within 30 days.
21-24 (c) After the hearing, the court shall:
21-25 (1) render an order for income withholding that
21-26 includes a determination of any amount of arrearages; or
21-27 (2) grant the motion to stay.
22-1 Sec. 8.259. SPECIAL EXCEPTIONS. (a) A defect in a notice of
22-2 application for a writ of withholding is waived unless the
22-3 respondent specially excepts in writing and cites with
22-4 particularity the alleged defect, obscurity, or other ambiguity in
22-5 the notice.
22-6 (b) A special exception under this section must be heard by
22-7 the court before hearing the motion to stay issuance.
22-8 (c) If the court sustains an exception, the court shall
22-9 provide the party filing the notice an opportunity to refile and
22-10 shall continue the hearing to a specified date without requiring
22-11 additional service.
22-12 Sec. 8.260. WRIT OF WITHHOLDING AFTER ARREARAGES ARE PAID.
22-13 (a) The court may not refuse to order withholding solely on the
22-14 basis that the obligor paid the arrearages after the obligor
22-15 received the notice of application for a writ of withholding.
22-16 (b) The court shall order that a reasonable amount of income
22-17 be withheld and applied toward the liquidation of arrearages, even
22-18 though a judgment confirming arrearages was rendered against the
22-19 obligor.
22-20 Sec. 8.261. REQUEST FOR ISSUANCE AND DELIVERY OF WRIT OF
22-21 WITHHOLDING. (a) If a notice of application for a writ of
22-22 withholding is delivered and the obligor does not file a motion to
22-23 stay within the time provided by Section 8.256, the party who filed
22-24 the notice shall file with the clerk of the court a request for
22-25 issuance of the writ of withholding stating the amount of current
22-26 spousal maintenance, the amount of arrearages, and the amount to be
22-27 withheld from the obligor's income.
23-1 (b) The party who filed the notice may not file a request
23-2 for issuance before the 11th day after the date the obligor
23-3 received the notice of application for a writ of withholding.
23-4 Sec. 8.262. ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING.
23-5 The clerk of the court shall, on the filing of a request for
23-6 issuance of a writ of withholding, issue and deliver the writ as
23-7 provided by Subchapter D not later than the second working day
23-8 after the date the request is filed.
23-9 Sec. 8.263. CONTENTS OF WRIT OF WITHHOLDING. A writ of
23-10 withholding must direct that an obligor's employer or a subsequent
23-11 employer withhold from the obligor's disposable earnings an amount
23-12 for current spousal maintenance and arrearages consistent with this
23-13 chapter.
23-14 Sec. 8.264. EXTENSION OF REPAYMENT SCHEDULE BY PARTY;
23-15 UNREASONABLE HARDSHIP. A party who files a notice of application
23-16 for a writ of withholding and who determines that the schedule for
23-17 repaying arrearages would cause unreasonable hardship to the
23-18 obligor or the obligor's family may extend the payment period in
23-19 the writ.
23-20 Sec. 8.265. REMITTANCE OF AMOUNT TO BE WITHHELD. The
23-21 obligor's employer shall remit the amount withheld to the person or
23-22 office named in the writ on each pay date and shall include with
23-23 the remittance the date on which the withholding occurred.
23-24 Sec. 8.266. FAILURE TO RECEIVE NOTICE OF APPLICATION FOR
23-25 WRIT OF WITHHOLDING. (a) Not later than the 30th day after the
23-26 date of the first pay period after the date the obligor's employer
23-27 receives a writ of withholding, the obligor may file an affidavit
24-1 with the court stating that:
24-2 (1) the obligor did not timely file a motion to stay
24-3 because the obligor did not receive the notice of application for a
24-4 writ of withholding; and
24-5 (2) grounds exist for a motion to stay.
24-6 (b) The obligor may:
24-7 (1) file with the affidavit a motion to withdraw the
24-8 writ of withholding; and
24-9 (2) request a hearing on the applicability of the
24-10 writ.
24-11 (c) Income withholding may not be interrupted until after
24-12 the hearing at which the court renders an order denying or
24-13 modifying withholding.
24-14 Sec. 8.267. ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING TO
24-15 SUBSEQUENT EMPLOYER. (a) After the clerk of the court issues a
24-16 writ of withholding, a party authorized to file a notice of
24-17 application for a writ of withholding under this subchapter may
24-18 deliver a copy of the writ to a subsequent employer of the obligor
24-19 by certified mail.
24-20 (b) The writ of withholding must include the name, address,
24-21 and signature of the party and clearly indicate that the writ is
24-22 being issued to a subsequent employer.
24-23 (c) The party shall file:
24-24 (1) a copy of the writ of withholding with the clerk
24-25 not later than the third working day after the date of delivery of
24-26 the writ to the subsequent employer; and
24-27 (2) the postal return receipt from the delivery to the
25-1 subsequent employer not later than the third working day after the
25-2 date the party receives the receipt.
25-3 (d) The party shall pay the clerk a fee in the amount of $15
25-4 for filing the copy of the writ.
25-5 (Sections 8.268-8.300 reserved for expansion
25-6 SUBCHAPTER G. MODIFICATION, REDUCTION,
25-7 OR TERMINATION OF WITHHOLDING
25-8 Sec. 8.301. AGREEMENT BY PARTIES REGARDING AMOUNT OR
25-9 DURATION OF WITHHOLDING. (a) An obligor and obligee may agree to
25-10 reduce or terminate income withholding for spousal maintenance on
25-11 the occurrence of any contingency stated in the order.
25-12 (b) The obligor and obligee may file a notarized or
25-13 acknowledged request with the clerk of the court under Section
25-14 8.108 for a revised writ of withholding or notice of termination of
25-15 withholding.
25-16 (c) The clerk shall issue and deliver to the obligor's
25-17 employer a writ of withholding that reflects the agreed revision or
25-18 a notice of termination of withholding.
25-19 (d) An agreement by the parties under this section does not
25-20 modify the terms of an order for spousal maintenance.
25-21 Sec. 8.302. MODIFICATIONS TO OR TERMINATION OF WITHHOLDING
25-22 IN VOLUNTARY WITHHOLDING CASES. (a) If an obligor initiates
25-23 voluntary withholding under Section 8.108, the obligee may file
25-24 with the clerk of the court a notarized request signed by the
25-25 obligor and the obligee for the issuance and delivery to the
25-26 obligor of:
25-27 (1) a modified writ of withholding that reduces the
26-1 amount of withholding; or
26-2 (2) a notice of termination of withholding.
26-3 (b) On receipt of a request under this section, the clerk
26-4 shall issue and deliver a modified writ of withholding or notice of
26-5 termination in the manner provided by Section 8.301.
26-6 (c) The clerk may charge a reasonable fee in an amount not
26-7 to exceed $15 for filing the request.
26-8 (d) An obligee may contest a modified writ of withholding or
26-9 notice of termination issued under this section by requesting a
26-10 hearing in the manner provided by Section 8.258 not later than the
26-11 180th day after the date the obligee discovers that the writ or
26-12 notice was issued.
26-13 Sec. 8.303. DELIVERY OF ORDER OF REDUCTION OR TERMINATION OF
26-14 WITHHOLDING. Any person may deliver to the obligor's employer a
26-15 certified copy of an order that reduces the amount of spousal
26-16 maintenance to be withheld or terminates the withholding.
26-17 Sec. 8.304. LIABILITY OF EMPLOYERS. The provisions of this
26-18 chapter regarding the liability of employers for withholding apply
26-19 to an order that reduces or terminates withholding.
26-20 SECTION 2. (a) This Act takes effect September 1, 2001.
26-21 (b) The change in law made by this Act applies to spousal
26-22 maintenance payments regardless of whether the payments become due
26-23 before, on, or after the effective date of this Act.