1-1 By: Thompson (Senate Sponsor - Harris) H.B. No. 691
1-2 (In the Senate - Received from the House April 27, 2001;
1-3 April 30, 2001, read first time and referred to Committee on
1-4 Jurisprudence; May 11, 2001, reported favorably by the following
1-5 vote: Yeas 4, Nays 0; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to income withholding for spousal maintenance; providing a
1-9 penalty.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Chapter 8, Family Code, is amended to read as
1-12 follows:
1-13 CHAPTER 8. MAINTENANCE
1-14 SUBCHAPTER A. GENERAL PROVISIONS
1-15 Sec. 8.001. DEFINITIONS [DEFINITION]. In this chapter:
1-16 (1) "Maintenance"[, "maintenance"] means an award in a
1-17 suit for dissolution of a marriage of periodic payments from the
1-18 future income of one spouse for the support of the other spouse.
1-19 (2) "Notice of application for a writ of withholding"
1-20 means the document delivered to an obligor and filed with the court
1-21 as required by this chapter for the nonjudicial determination of
1-22 arrears and initiation of withholding for spousal maintenance.
1-23 (3) "Obligee" means a person entitled to receive
1-24 payments under the terms of an order for spousal maintenance.
1-25 (4) "Obligor" means a person required to make periodic
1-26 payments under the terms of an order for spousal maintenance.
1-27 (5) "Writ of withholding" means the document issued by
1-28 the clerk of a court and delivered to an employer, directing that
1-29 earnings be withheld for payment of spousal maintenance as provided
1-30 by this chapter.
1-31 (Sections 8.002-8.050 reserved for expansion
1-32 SUBCHAPTER B. COURT-ORDERED MAINTENANCE
1-33 Sec. 8.051 [8.002]. ELIGIBILITY FOR MAINTENANCE; COURT
1-34 ORDER. [(a)] In a suit for dissolution of a marriage or in a
1-35 proceeding for maintenance in a court with personal jurisdiction
1-36 over both former spouses following the dissolution of their
1-37 marriage by a court that lacked personal jurisdiction over an
1-38 absent spouse, the court may order maintenance for either spouse
1-39 only if:
1-40 (1) the spouse from whom maintenance is requested was
1-41 convicted of or received deferred adjudication for a criminal
1-42 offense that also constitutes an act of family violence under Title
1-43 4 and the offense occurred:
1-44 (A) within two years before the date on which a
1-45 suit for dissolution of the marriage is filed; or
1-46 (B) while the suit is pending; or
1-47 (2) the duration of the marriage was 10 years or
1-48 longer, the spouse seeking maintenance lacks sufficient property,
1-49 including property distributed to the spouse under this code, to
1-50 provide for the spouse's minimum reasonable needs, as limited by
1-51 Section 8.054 [8.005], and the spouse seeking maintenance:
1-52 (A) is unable to support himself or herself
1-53 through appropriate employment because of an incapacitating
1-54 physical or mental disability;
1-55 (B) is the custodian of a child who requires
1-56 substantial care and personal supervision because a physical or
1-57 mental disability makes it necessary, taking into consideration the
1-58 needs of the child, that the spouse not be employed outside the
1-59 home; or
1-60 (C) clearly lacks earning ability in the labor
1-61 market adequate to provide support for the spouse's minimum
1-62 reasonable needs, as limited by Section 8.054 [8.005].
1-63 [(b) A court may enforce an order for spousal maintenance
1-64 under this section by ordering garnishment of the wages of the
2-1 person ordered to pay the maintenance or by any other means
2-2 available under Section 8.009.]
2-3 Sec. 8.052 [8.003]. FACTORS IN DETERMINING MAINTENANCE. A
2-4 court that determines that a spouse is eligible to receive
2-5 maintenance under this chapter shall determine the nature, amount,
2-6 duration, and manner of periodic payments by considering all
2-7 relevant factors, including:
2-8 (1) the financial resources of the spouse seeking
2-9 maintenance, including the community and separate property and
2-10 liabilities apportioned to that spouse in the dissolution
2-11 proceeding, and that spouse's ability to meet the spouse's needs
2-12 independently;
2-13 (2) the education and employment skills of the
2-14 spouses, the time necessary to acquire sufficient education or
2-15 training to enable the spouse seeking maintenance to find
2-16 appropriate employment, the availability of that education or
2-17 training, and the feasibility of that education or training;
2-18 (3) the duration of the marriage;
2-19 (4) the age, employment history, earning ability, and
2-20 physical and emotional condition of the spouse seeking maintenance;
2-21 (5) the ability of the spouse from whom maintenance is
2-22 requested to meet that spouse's personal needs and to provide
2-23 periodic child support payments, if applicable, while meeting the
2-24 personal needs of the spouse seeking maintenance;
2-25 (6) acts by either spouse resulting in excessive or
2-26 abnormal expenditures or destruction, concealment, or fraudulent
2-27 disposition of community property, joint tenancy, or other property
2-28 held in common;
2-29 (7) the comparative financial resources of the
2-30 spouses, including medical, retirement, insurance, or other
2-31 benefits, and the separate property of each spouse;
2-32 (8) the contribution by one spouse to the education,
2-33 training, or increased earning power of the other spouse;
2-34 (9) the property brought to the marriage by either
2-35 spouse;
2-36 (10) the contribution of a spouse as homemaker;
2-37 (11) marital misconduct of the spouse seeking
2-38 maintenance; and
2-39 (12) the efforts of the spouse seeking maintenance to
2-40 pursue available employment counseling as provided by Chapter 304,
2-41 Labor Code.
2-42 Sec. 8.053 [8.004]. PRESUMPTION. (a) Except as provided by
2-43 Subsection (b), it is presumed that maintenance is not warranted
2-44 unless the spouse seeking maintenance has exercised diligence in:
2-45 (1) seeking suitable employment; or
2-46 (2) developing the necessary skills to become
2-47 self-supporting during a period of separation and during the time
2-48 the suit for dissolution of the marriage is pending.
2-49 (b) This section does not apply to a spouse who is not able
2-50 to satisfy the presumption in Subsection (a) because of an
2-51 incapacitating physical or mental disability.
2-52 Sec. 8.054 [8.005]. DURATION OF MAINTENANCE ORDER. (a)
2-53 Except as provided by Subsection (b), a court:
2-54 (1) may not order maintenance that remains in effect
2-55 for more than three years after the date of the order; and
2-56 (2) shall limit the duration of a maintenance order to
2-57 the shortest reasonable period that allows the spouse seeking
2-58 maintenance to meet the spouse's minimum reasonable needs by
2-59 obtaining appropriate employment or developing an appropriate
2-60 skill, unless the ability of the spouse to provide for the spouse's
2-61 minimum reasonable needs through employment is substantially or
2-62 totally diminished because of:
2-63 (A) physical or mental disability;
2-64 (B) duties as the custodian of an infant or
2-65 young child; or
2-66 (C) another compelling impediment to gainful
2-67 employment.
2-68 (b) If a spouse seeking maintenance is unable to support
2-69 himself or herself through appropriate employment because of an
3-1 incapacitating physical or mental disability, the court may order
3-2 maintenance for an indefinite period for as long as the disability
3-3 continues. The court may order periodic review of its order, on
3-4 the request of either party or on its own motion, to determine
3-5 whether the disability is continuing. The continuation of spousal
3-6 maintenance under these circumstances is subject to a motion to
3-7 modify as provided by Section 8.057 [8.008].
3-8 Sec. 8.055 [8.006]. AMOUNT OF MAINTENANCE. (a) A court may
3-9 not order maintenance that requires an obligor [a spouse] to pay
3-10 monthly more than the lesser of:
3-11 (1) $2,500; or
3-12 (2) 20 percent of the spouse's average monthly gross
3-13 income.
3-14 (b) The court shall set the amount that an obligor [a
3-15 spouse] is required to pay in a maintenance order to provide for
3-16 the minimum reasonable needs of the obligee [spouse receiving the
3-17 maintenance under the order], considering employment or property
3-18 received in the dissolution of the marriage or otherwise owned by
3-19 the obligee [spouse receiving the maintenance] that contributes to
3-20 the minimum reasonable needs of the obligee [that spouse].
3-21 (c) Department of Veterans Affairs service-connected
3-22 disability compensation, social security benefits and disability
3-23 benefits, and workers' compensation benefits are excluded from
3-24 maintenance.
3-25 Sec. 8.056 [8.007]. TERMINATION. (a) The obligation to pay
3-26 future maintenance terminates on the death of either party or on
3-27 the remarriage of the obligee [party receiving maintenance].
3-28 (b) After a hearing, the court shall terminate the
3-29 maintenance order if the obligee [party receiving maintenance]
3-30 cohabits with another person in a permanent place of abode on a
3-31 continuing, conjugal basis.
3-32 Sec. 8.057 [8.008]. MODIFICATION OF MAINTENANCE ORDER. (a)
3-33 The amount of maintenance specified in a court order or the portion
3-34 of a decree that provides for the support of a former spouse may be
3-35 reduced by the filing of a motion in the court that originally
3-36 rendered the order. A party affected by the order or the portion
3-37 of the decree to be modified may file the motion.
3-38 (b) Notice of a motion to modify maintenance and the
3-39 response, if any, are governed by the Texas Rules of Civil
3-40 Procedure applicable to the filing of an original lawsuit. Notice
3-41 must be given by service of citation, and a response must be in the
3-42 form of an answer due on or before 10 a.m. of the first Monday
3-43 after 20 days after the date of service. A court shall set a
3-44 hearing on the motion in the manner provided by Rule 245, Texas
3-45 Rules of Civil Procedure.
3-46 (c) After a hearing, the court may modify an original or
3-47 modified order or portion of a decree providing for maintenance on
3-48 a proper showing of a material and substantial change in
3-49 circumstances of either party. The court shall apply the
3-50 modification only to payment accruing after the filing of the
3-51 motion to modify.
3-52 (d) A loss of employment or circumstances that render a
3-53 former spouse unable to support himself or herself through
3-54 appropriate employment by reason of incapacitating physical or
3-55 mental disability that occur after the divorce or annulment are not
3-56 grounds for the institution of spousal maintenance for the benefit
3-57 of the former spouse.
3-58 Sec. 8.058. MAINTENANCE ARREARAGES. A spousal maintenance
3-59 payment not timely made constitutes an arrearage.
3-60 Sec. 8.059 [8.009]. ENFORCEMENT OF MAINTENANCE ORDER. (a)
3-61 The court may enforce by contempt the court's maintenance order or
3-62 an agreement for the payment of maintenance voluntarily entered
3-63 into between the parties and approved by the court.
3-64 (b) On the suit to enforce by an obligee [of a party
3-65 entitled to receive maintenance payments], the court may render
3-66 judgment against a defaulting party for the [an] amount of
3-67 arrearages [unpaid and owing] after notice by service of citation,
3-68 answer, if any, and a hearing finding that the defaulting party has
3-69 failed or refused to carry out the terms of the order. The
4-1 judgment may be enforced by any means available for the enforcement
4-2 of judgment for debts.
4-3 (c) It is an affirmative defense to an allegation of
4-4 contempt of court or the violation of a condition of probation
4-5 requiring payment of court-ordered maintenance that the obligor:
4-6 (1) lacked the ability to provide maintenance in the
4-7 amount ordered;
4-8 (2) lacked property that could be sold, mortgaged, or
4-9 otherwise pledged to raise the funds needed;
4-10 (3) attempted unsuccessfully to borrow the needed
4-11 funds; and
4-12 (4) did not know of a source from which the money
4-13 could have been borrowed or otherwise legally obtained.
4-14 (d) The issue of the existence of an affirmative defense
4-15 does not arise unless evidence is admitted supporting the defense.
4-16 If the issue of the existence of an affirmative defense arises, an
4-17 obligor must prove the affirmative defense by a preponderance of
4-18 the evidence.
4-19 (e) A court may enforce an order for spousal maintenance
4-20 under this chapter by ordering garnishment of the obligor's wages
4-21 or by any other means available under this section.
4-22 Sec. 8.060 [8.010]. PUTATIVE SPOUSE. In a suit to declare a
4-23 marriage void, a putative spouse who did not have knowledge of an
4-24 existing impediment to a valid marriage may be awarded maintenance
4-25 if otherwise qualified to receive maintenance under this chapter.
4-26 Sec. 8.061 [8.011]. UNMARRIED COHABITANTS. An order for
4-27 maintenance is not authorized between unmarried cohabitants under
4-28 any circumstances.
4-29 (Sections 8.062-8.100 reserved for expansion
4-30 SUBCHAPTER C. INCOME WITHHOLDING
4-31 Sec. 8.101. INCOME WITHHOLDING; GENERAL RULE. (a) In a
4-32 proceeding in which periodic payments of spousal maintenance are
4-33 ordered, modified, or enforced, the court may order that income be
4-34 withheld from the disposable earnings of the obligor as provided by
4-35 this chapter.
4-36 (b) This subchapter does not apply to contractual alimony or
4-37 spousal maintenance, regardless of whether the alimony or
4-38 maintenance is taxable, unless:
4-39 (1) the contract specifically permits income
4-40 withholding; or
4-41 (2) the alimony or maintenance payments are not timely
4-42 made under the terms of the contract.
4-43 (c) An order or writ of withholding for spousal maintenance
4-44 may be combined with an order or writ of withholding for child
4-45 support only if the obligee has been appointed managing conservator
4-46 of the child for whom the child support is owed and is the
4-47 conservator with whom the child primarily resides.
4-48 (d) An order or writ of withholding that combines
4-49 withholding for spousal maintenance and child support must:
4-50 (1) require that the withheld amounts be paid to the
4-51 appropriate place of payment under Section 154.004;
4-52 (2) be in the form prescribed by the Title IV-D agency
4-53 under Section 158.106;
4-54 (3) clearly indicate the amounts withheld that are to
4-55 be applied to current spousal maintenance and to any maintenance
4-56 arrearages; and
4-57 (4) subject to the maximum withholding allowed under
4-58 Section 8.106, order that withheld income be applied in the
4-59 following order of priority:
4-60 (A) current child support;
4-61 (B) current spousal maintenance;
4-62 (C) child support arrearages; and
4-63 (D) spousal maintenance arrearages.
4-64 (e) Garnishment for the purposes of spousal maintenance does
4-65 not apply to unemployment insurance benefit payments.
4-66 Sec. 8.102. WITHHOLDING FOR ARREARAGES IN ADDITION TO
4-67 CURRENT SPOUSAL MAINTENANCE. (a) The court may order that, in
4-68 addition to income withheld for current spousal maintenance, income
4-69 be withheld from the disposable earnings of the obligor to be
5-1 applied toward the liquidation of any arrearages.
5-2 (b) The additional amount withheld to be applied toward
5-3 arrearages must be whichever of the following amounts will
5-4 discharge the arrearages in the least amount of time:
5-5 (1) an amount sufficient to discharge the arrearages
5-6 in not more than two years; or
5-7 (2) 20 percent of the amount withheld for current
5-8 maintenance.
5-9 Sec. 8.103. WITHHOLDING FOR ARREARAGES WHEN CURRENT
5-10 MAINTENANCE IS NOT DUE. A court may order income withholding to be
5-11 applied toward arrearages in an amount sufficient to discharge
5-12 those arrearages in not more than two years if current spousal
5-13 maintenance is no longer owed.
5-14 Sec. 8.104. WITHHOLDING TO SATISFY JUDGMENT FOR ARREARAGES.
5-15 The court, in rendering a cumulative judgment for arrearages, may
5-16 order that a reasonable amount of income be withheld from the
5-17 disposable earnings of the obligor to be applied toward the
5-18 satisfaction of the judgment.
5-19 Sec. 8.105. PRIORITY OF WITHHOLDING. An order or writ of
5-20 withholding under this chapter has priority over any garnishment,
5-21 attachment, execution, or other order affecting disposable
5-22 earnings, except for an order or writ of withholding for child
5-23 support under Chapter 158.
5-24 Sec. 8.106. MAXIMUM AMOUNT WITHHELD FROM EARNINGS. An order
5-25 or writ of withholding must direct that an obligor's employer
5-26 withhold from the obligor's disposable earnings the lesser of:
5-27 (1) the amount specified in the order or writ; or
5-28 (2) an amount that, when added to the amount of income
5-29 being withheld by the employer for child support, is equal to 50
5-30 percent of the obligor's disposable earnings.
5-31 Sec. 8.107. ORDER OR WRIT BINDING ON EMPLOYER DOING BUSINESS
5-32 IN THIS STATE. An order or writ of withholding issued under this
5-33 chapter and delivered to an employer doing business in this state
5-34 is binding on the employer without regard to whether the obligor
5-35 resides or works outside this state.
5-36 Sec. 8.108. VOLUNTARY WRIT OF WITHHOLDING BY OBLIGOR. (a)
5-37 An obligor may file with the clerk of the court a notarized or
5-38 acknowledged request signed by the obligor and the obligee for the
5-39 issuance and delivery to the obligor's employer of a writ of
5-40 withholding. The obligor may file the request under this section
5-41 regardless of whether a writ or order has been served on any party
5-42 or whether the obligor owes arrearages.
5-43 (b) On receipt of a request under this section, the clerk
5-44 shall issue and deliver a writ of withholding in the manner
5-45 provided by this subchapter.
5-46 (c) An employer who receives a writ of withholding issued
5-47 under this section may request a hearing in the same manner and
5-48 according to the same terms provided by Section 8.205.
5-49 (d) An obligor whose employer receives a writ of withholding
5-50 issued under this section may request a hearing in the manner
5-51 provided by Section 8.258.
5-52 (e) An obligee may contest a writ of income withholding
5-53 issued under this section by requesting, not later than the 180th
5-54 day after the date on which the obligee discovers that the writ was
5-55 issued, a hearing to be conducted in the manner provided by Section
5-56 8.258 for a hearing on a motion to stay.
5-57 (f) A writ of withholding under this section may not reduce
5-58 the total amount of spousal maintenance, including arrearages, owed
5-59 by the obligor.
5-60 (Sections 8.109-8.150 reserved for expansion
5-61 SUBCHAPTER D. PROCEDURE
5-62 Sec. 8.151. TIME LIMIT. The court may issue an order or writ
5-63 for withholding under this chapter at any time before all spousal
5-64 maintenance and arrearages are paid.
5-65 Sec. 8.152. CONTENTS OF ORDER OF WITHHOLDING. (a) An order
5-66 of withholding must state:
5-67 (1) the style, cause number, and court having
5-68 jurisdiction to enforce the order;
5-69 (2) the name, address, and, if available, the social
6-1 security number of the obligor;
6-2 (3) the amount and duration of the spousal maintenance
6-3 payments, including the amount and duration of withholding for
6-4 arrearages, if any; and
6-5 (4) the name, address, and, if available, the social
6-6 security number of the obligee.
6-7 (b) The order for withholding must require the obligor to
6-8 notify the court promptly of any material change affecting the
6-9 order, including a change of employer.
6-10 (c) On request by an obligee, the court may exclude from an
6-11 order of withholding the obligee's address and social security
6-12 number if the obligee or a member of the obligee's family or
6-13 household is a victim of family violence and is the subject of a
6-14 protective order to which the obligor is also subject. On granting
6-15 a request under this subsection, the court shall order the clerk
6-16 to:
6-17 (1) strike the address and social security number
6-18 required by Subsection (a) from the order or writ of withholding;
6-19 and
6-20 (2) maintain a confidential record of the obligee's
6-21 address and social security number to be used only by the court.
6-22 Sec. 8.153. REQUEST FOR ISSUANCE OF ORDER OR WRIT OF
6-23 WITHHOLDING. An obligor or obligee may file with the clerk of the
6-24 court a request for issuance of an order or writ of withholding.
6-25 Sec. 8.154. ISSUANCE AND DELIVERY OF ORDER OR WRIT OF
6-26 WITHHOLDING. (a) On receipt of a request for issuance of an order
6-27 or writ of withholding, the clerk of the court shall deliver a
6-28 certified copy of the order or writ to the obligor's current
6-29 employer or to any subsequent employer of the obligor. The clerk
6-30 shall attach a copy of Subchapter E to the order or writ.
6-31 (b) Not later than the fourth working day after the date the
6-32 order is signed or the request is filed, whichever is later, the
6-33 clerk shall issue and deliver the certified copy of the order or
6-34 writ by:
6-35 (1) certified or registered mail, return receipt
6-36 requested, to the employer; or
6-37 (2) service of citation to:
6-38 (A) the person authorized to receive service of
6-39 process for the employer in civil cases generally; or
6-40 (B) a person designated by the employer by
6-41 written notice to the clerk to receive orders or notices of income
6-42 withholding.
6-43 (Sections 8.155-8.200 reserved for expansion
6-44 SUBCHAPTER E. RIGHTS AND DUTIES OF EMPLOYER
6-45 Sec. 8.201. ORDER OR WRIT BINDING ON EMPLOYER. (a) An
6-46 employer required to withhold income from earnings under this
6-47 chapter is not entitled to notice of the proceedings before the
6-48 order of withholding is rendered or writ of withholding is issued.
6-49 (b) An order or writ of withholding is binding on an
6-50 employer regardless of whether the employer is specifically named
6-51 in the order or writ.
6-52 Sec. 8.202. EFFECTIVE DATE AND DURATION OF INCOME
6-53 WITHHOLDING. An employer shall begin to withhold income in
6-54 accordance with an order or writ of withholding not later than the
6-55 first pay period after the date the order or writ was delivered to
6-56 the employer. The employer shall continue to withhold income as
6-57 required by the order or writ as long as the obligor is employed by
6-58 the employer.
6-59 Sec. 8.203. REMITTING WITHHELD PAYMENTS. (a) The employer
6-60 shall remit to the person or office named in the order or writ of
6-61 withholding the amount of income withheld from an obligor on each
6-62 pay date. The remittance must include the date on which the income
6-63 withholding occurred.
6-64 (b) The employer shall include with each remittance:
6-65 (1) the cause number of the suit under which income
6-66 withholding is required;
6-67 (2) the payor's name; and
6-68 (3) the payee's name, unless the remittance is made by
6-69 electronic funds transfer.
7-1 Sec. 8.204. EMPLOYER MAY DEDUCT FEE FROM EARNINGS. An
7-2 employer may deduct an administrative fee of not more than $5 each
7-3 month from the obligor's disposable earnings in addition to the
7-4 amount withheld as spousal maintenance.
7-5 Sec. 8.205. HEARING REQUESTED BY EMPLOYER. (a) Not later
7-6 than the 20th day after the date an order or writ of withholding is
7-7 delivered to an employer, the employer may file with the court a
7-8 motion for a hearing on the applicability of the order or writ to
7-9 the employer.
7-10 (b) The hearing under this section must be held on or before
7-11 the 15th day after the date the motion is made.
7-12 (c) An order or writ of withholding is binding and the
7-13 employer shall continue to withhold income and remit the amount
7-14 withheld pending further order of the court.
7-15 Sec. 8.206. LIABILITY AND OBLIGATION OF EMPLOYER FOR
7-16 PAYMENTS. (a) An employer who complies with an order or writ of
7-17 withholding under this chapter is not liable to the obligor for the
7-18 amount of income withheld and remitted as required by the order or
7-19 writ.
7-20 (b) An employer who receives, but does not comply with, an
7-21 order or writ of withholding is liable to:
7-22 (1) the obligee for any amount of spousal maintenance
7-23 not paid in compliance with the order or writ;
7-24 (2) the obligor for any amount withheld from the
7-25 obligor's disposable earnings, but not remitted to the obligee; and
7-26 (3) the obligee or obligor for reasonable attorney's
7-27 fees and court costs incurred in recovering an amount described by
7-28 Subdivision (1) or (2).
7-29 (c) An employer shall comply with an order of withholding
7-30 for spousal maintenance or alimony issued in another state that
7-31 appears regular on its face in the same manner as an order issued
7-32 by a tribunal of this state. The employer shall notify the
7-33 employee of the order and comply with the order in the manner
7-34 provided by Subchapter F, Chapter 159, with respect to an order of
7-35 withholding for child support issued by another state. The
7-36 employer may contest the order of withholding in the manner
7-37 provided by that subchapter with respect to an order of withholding
7-38 for child support issued by another state.
7-39 Sec. 8.207. EMPLOYER RECEIVING MULTIPLE ORDERS OR WRITS. (a)
7-40 An employer who receives more than one order or writ of withholding
7-41 to withhold income from the same obligor shall withhold the
7-42 combined amounts due under each order or writ unless the combined
7-43 amounts due exceed the maximum total amount of allowed income
7-44 withholding under Section 8.106.
7-45 (b) If the combined amounts to be withheld under multiple
7-46 orders or writs for the same obligor exceed the maximum total
7-47 amount of allowed income withholding under Section 8.106, the
7-48 employer shall pay, until that maximum is reached, in the following
7-49 order of priority:
7-50 (1) an equal amount toward current child support owed
7-51 by the obligor in each order or writ until the employer has
7-52 complied fully with each current child support obligation;
7-53 (2) an equal amount toward current maintenance owed by
7-54 the obligor in each order or writ until the employer has complied
7-55 fully with each current maintenance obligation;
7-56 (3) an equal amount toward child support arrearages
7-57 owed by the obligor in each order or writ until the employer has
7-58 complied fully with each order or writ for child support
7-59 arrearages; and
7-60 (4) an equal amount toward maintenance arrearages owed
7-61 by the obligor in each order or writ until the employer has
7-62 complied fully with each order or writ for spousal maintenance
7-63 arrearages.
7-64 Sec. 8.208. EMPLOYER'S LIABILITY FOR DISCRIMINATORY HIRING
7-65 OR DISCHARGE. (a) An employer may not use an order or writ of
7-66 withholding as grounds in whole or part for the termination of
7-67 employment of, or for any other disciplinary action against, an
7-68 employee.
7-69 (b) An employer may not refuse to hire an employee because
8-1 of an order or writ of withholding.
8-2 (c) An employer who intentionally discharges an employee in
8-3 violation of this section is liable to that employee for current
8-4 wages, other employment benefits, and reasonable attorney's fees
8-5 and court costs incurred in enforcing the employee's rights.
8-6 (d) In addition to liability imposed under Subsection (c),
8-7 the court shall order with respect to an employee whose employment
8-8 was suspended or terminated in violation of this section
8-9 appropriate injunctive relief, including reinstatement of:
8-10 (1) the employee's position with the employer; and
8-11 (2) fringe benefits or seniority lost as a result of
8-12 the suspension or termination.
8-13 (e) An employee may bring an action to enforce the
8-14 employee's rights under this section.
8-15 Sec. 8.209. PENALTY FOR NONCOMPLIANCE. (a) In addition to
8-16 the civil remedies provided by this subchapter or any other remedy
8-17 provided by law, an employer who knowingly violates this chapter by
8-18 failing to withhold income for spousal maintenance or to remit
8-19 withheld income in accordance with an order or writ of withholding
8-20 issued under this chapter commits an offense.
8-21 (b) An offense under this section is punishable by a fine
8-22 not to exceed $200 for each violation.
8-23 Sec. 8.210. NOTICE OF TERMINATION OF EMPLOYMENT AND OF NEW
8-24 EMPLOYMENT. (a) An obligor who terminates employment with an
8-25 employer who has been withholding income and the obligor's employer
8-26 shall each notify the court and the obligee of:
8-27 (1) the termination of employment not later than the
8-28 seventh day after the date of termination;
8-29 (2) the obligor's last known address; and
8-30 (3) the name and address of the obligor's new
8-31 employer, if known.
8-32 (b) The obligor shall inform a subsequent employer of the
8-33 order or writ of withholding after obtaining employment.
8-34 (Sections 8.211-8.250 reserved for expansion
8-35 SUBCHAPTER F. WRIT OF WITHHOLDING ISSUED BY CLERK
8-36 Sec. 8.251. NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING;
8-37 FILING. (a) An obligor or obligee may file a notice of application
8-38 for a writ of withholding if income withholding was not ordered at
8-39 the time spousal maintenance was ordered.
8-40 (b) The obligor or obligee may file the notice of
8-41 application for a writ of withholding in the court that ordered the
8-42 spousal maintenance under Subchapter B.
8-43 Sec. 8.252. CONTENTS OF NOTICE OF APPLICATION FOR WRIT OF
8-44 WITHHOLDING. The notice of application for a writ of withholding
8-45 must be verified and:
8-46 (1) state the amount of monthly maintenance due,
8-47 including the amount of arrearages or anticipated arrearages, and
8-48 the amount of disposable earnings to be withheld under a writ of
8-49 withholding;
8-50 (2) state that the withholding applies to each current
8-51 or subsequent employer or period of employment;
8-52 (3) state that the obligor's employer will be notified
8-53 to begin the withholding if the obligor does not contest the
8-54 withholding on or before the 10th day after the date the obligor
8-55 receives the notice;
8-56 (4) describe the procedures for contesting the
8-57 issuance and delivery of a writ of withholding;
8-58 (5) state that the obligor will be provided an
8-59 opportunity for a hearing not later than the 30th day after the
8-60 date of receipt of the notice of contest if the obligor contests
8-61 the withholding;
8-62 (6) state that the sole ground for successfully
8-63 contesting the issuance of a writ of withholding is a dispute
8-64 concerning the identity of the obligor or the existence or amount
8-65 of the arrearages;
8-66 (7) describe the actions that may be taken if the
8-67 obligor contests the notice of application for a writ of
8-68 withholding, including the procedures for suspending issuance of a
8-69 writ of withholding; and
9-1 (8) include with the notice a suggested form for the
9-2 motion to stay issuance and delivery of the writ of withholding
9-3 that the obligor may file with the clerk of the appropriate court.
9-4 Sec. 8.253. INTERSTATE REQUEST FOR WITHHOLDING. (a) The
9-5 registration of a foreign order that provides for spousal
9-6 maintenance or alimony as provided in Chapter 159 is sufficient for
9-7 filing a notice of application for a writ of withholding.
9-8 (b) The notice must be filed with the clerk of the court
9-9 having venue as provided in Chapter 159.
9-10 (c) The notice of application for a writ of withholding may
9-11 be delivered to the obligor at the same time that an order is filed
9-12 for registration under Chapter 159.
9-13 Sec. 8.254. ADDITIONAL ARREARAGES. If the notice of
9-14 application for a writ of withholding states that the obligor has
9-15 failed to pay more than one spousal maintenance payment according
9-16 to the terms of the spousal maintenance order, the writ of
9-17 withholding may include withholding for arrearages that accrue
9-18 between the filing of the notice and the date of the hearing or the
9-19 issuance of the writ.
9-20 Sec. 8.255. DELIVERY OF NOTICE OF APPLICATION FOR WRIT OF
9-21 WITHHOLDING; TIME OF DELIVERY. (a) The party who files a notice of
9-22 application for a writ of withholding shall deliver the notice to
9-23 the obligor by:
9-24 (1) first-class or certified mail, return receipt
9-25 requested, addressed to the obligor's last known address or place
9-26 of employment; or
9-27 (2) service of citation as in civil cases generally.
9-28 (b) If the notice is delivered by mail, the party who filed
9-29 the notice shall file with the court a certificate stating the
9-30 name, address, and date the party mailed the notice.
9-31 (c) The notice is considered to have been received by the
9-32 obligor:
9-33 (1) on the date of receipt, if the notice was mailed
9-34 by certified mail;
9-35 (2) on the 10th day after the date the notice was
9-36 mailed, if the notice was mailed by first-class mail; or
9-37 (3) on the date of service, if the notice was
9-38 delivered by service of citation.
9-39 Sec. 8.256. MOTION TO STAY ISSUANCE OF WRIT OF WITHHOLDING.
9-40 (a) The obligor may stay issuance of a writ of withholding by
9-41 filing a motion to stay with the clerk of the court not later than
9-42 the 10th day after the date the notice of application for a writ of
9-43 withholding was received.
9-44 (b) The grounds for filing a motion to stay issuance are
9-45 limited to a dispute concerning the identity of the obligor or the
9-46 existence or the amount of the arrearages.
9-47 (c) The obligor shall verify that the statements of fact in
9-48 the motion to stay issuance of the writ are correct.
9-49 Sec. 8.257. EFFECT OF FILING MOTION TO STAY. If the obligor
9-50 files a motion to stay as provided by Section 8.256, the clerk of
9-51 the court may not deliver the writ of withholding to the obligor's
9-52 employer before a hearing is held.
9-53 Sec. 8.258. HEARING ON MOTION TO STAY. (a) If the obligor
9-54 files a motion to stay as provided by Section 8.256, the court
9-55 shall set a hearing on the motion and the clerk of the court shall
9-56 notify the obligor and obligee of the date, time, and place of the
9-57 hearing.
9-58 (b) The court shall hold a hearing on the motion to stay not
9-59 later than the 30th day after the date the motion was filed unless
9-60 the obligor and obligee agree and waive the right to have the
9-61 motion heard within 30 days.
9-62 (c) After the hearing, the court shall:
9-63 (1) render an order for income withholding that
9-64 includes a determination of any amount of arrearages; or
9-65 (2) grant the motion to stay.
9-66 Sec. 8.259. SPECIAL EXCEPTIONS. (a) A defect in a notice of
9-67 application for a writ of withholding is waived unless the
9-68 respondent specially excepts in writing and cites with
9-69 particularity the alleged defect, obscurity, or other ambiguity in
10-1 the notice.
10-2 (b) A special exception under this section must be heard by
10-3 the court before hearing the motion to stay issuance.
10-4 (c) If the court sustains an exception, the court shall
10-5 provide the party filing the notice an opportunity to refile and
10-6 shall continue the hearing to a specified date without requiring
10-7 additional service.
10-8 Sec. 8.260. WRIT OF WITHHOLDING AFTER ARREARAGES ARE PAID.
10-9 (a) The court may not refuse to order withholding solely on the
10-10 basis that the obligor paid the arrearages after the obligor
10-11 received the notice of application for a writ of withholding.
10-12 (b) The court shall order that a reasonable amount of income
10-13 be withheld and applied toward the liquidation of arrearages, even
10-14 though a judgment confirming arrearages was rendered against the
10-15 obligor.
10-16 Sec. 8.261. REQUEST FOR ISSUANCE AND DELIVERY OF WRIT OF
10-17 WITHHOLDING. (a) If a notice of application for a writ of
10-18 withholding is delivered and the obligor does not file a motion to
10-19 stay within the time provided by Section 8.256, the party who filed
10-20 the notice shall file with the clerk of the court a request for
10-21 issuance of the writ of withholding stating the amount of current
10-22 spousal maintenance, the amount of arrearages, and the amount to be
10-23 withheld from the obligor's income.
10-24 (b) The party who filed the notice may not file a request
10-25 for issuance before the 11th day after the date the obligor
10-26 received the notice of application for a writ of withholding.
10-27 Sec. 8.262. ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING.
10-28 The clerk of the court shall, on the filing of a request for
10-29 issuance of a writ of withholding, issue and deliver the writ as
10-30 provided by Subchapter D not later than the second working day
10-31 after the date the request is filed. The clerk shall charge a fee
10-32 in the amount of $15 for issuing the writ of withholding.
10-33 Sec. 8.263. CONTENTS OF WRIT OF WITHHOLDING. A writ of
10-34 withholding must direct that an obligor's employer or a subsequent
10-35 employer withhold from the obligor's disposable earnings an amount
10-36 for current spousal maintenance and arrearages consistent with this
10-37 chapter.
10-38 Sec. 8.264. EXTENSION OF REPAYMENT SCHEDULE BY PARTY;
10-39 UNREASONABLE HARDSHIP. A party who files a notice of application
10-40 for a writ of withholding and who determines that the schedule for
10-41 repaying arrearages would cause unreasonable hardship to the
10-42 obligor or the obligor's family may extend the payment period in
10-43 the writ.
10-44 Sec. 8.265. REMITTANCE OF AMOUNT TO BE WITHHELD. The
10-45 obligor's employer shall remit the amount withheld to the person or
10-46 office named in the writ on each pay date and shall include with
10-47 the remittance the date on which the withholding occurred.
10-48 Sec. 8.266. FAILURE TO RECEIVE NOTICE OF APPLICATION FOR
10-49 WRIT OF WITHHOLDING. (a) Not later than the 30th day after the
10-50 date of the first pay period after the date the obligor's employer
10-51 receives a writ of withholding, the obligor may file an affidavit
10-52 with the court stating that:
10-53 (1) the obligor did not timely file a motion to stay
10-54 because the obligor did not receive the notice of application for a
10-55 writ of withholding; and
10-56 (2) grounds exist for a motion to stay.
10-57 (b) The obligor may:
10-58 (1) file with the affidavit a motion to withdraw the
10-59 writ of withholding; and
10-60 (2) request a hearing on the applicability of the
10-61 writ.
10-62 (c) Income withholding may not be interrupted until after
10-63 the hearing at which the court renders an order denying or
10-64 modifying withholding.
10-65 Sec. 8.267. ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING TO
10-66 SUBSEQUENT EMPLOYER. (a) After the clerk of the court issues a
10-67 writ of withholding, a party authorized to file a notice of
10-68 application for a writ of withholding under this subchapter may
10-69 deliver a copy of the writ to a subsequent employer of the obligor
11-1 by certified mail.
11-2 (b) Except as provided by an order under Section 8.152, the
11-3 writ of withholding must include the name, address, and signature
11-4 of the party and clearly indicate that the writ is being issued to
11-5 a subsequent employer.
11-6 (c) The party shall file:
11-7 (1) a copy of the writ of withholding with the clerk
11-8 not later than the third working day after the date of delivery of
11-9 the writ to the subsequent employer; and
11-10 (2) the postal return receipt from the delivery to the
11-11 subsequent employer not later than the third working day after the
11-12 date the party receives the receipt.
11-13 (d) The party shall pay the clerk a fee in the amount of $15
11-14 for filing the copy of the writ.
11-15 (Sections 8.268-8.300 reserved for expansion
11-16 SUBCHAPTER G. MODIFICATION, REDUCTION,
11-17 OR TERMINATION OF WITHHOLDING
11-18 Sec. 8.301. AGREEMENT BY PARTIES REGARDING AMOUNT OR
11-19 DURATION OF WITHHOLDING. (a) An obligor and obligee may agree to
11-20 reduce or terminate income withholding for spousal maintenance on
11-21 the occurrence of any contingency stated in the order.
11-22 (b) The obligor and obligee may file a notarized or
11-23 acknowledged request with the clerk of the court under Section
11-24 8.108 for a revised writ of withholding or notice of termination of
11-25 withholding.
11-26 (c) The clerk shall issue and deliver to the obligor's
11-27 employer a writ of withholding that reflects the agreed revision or
11-28 a notice of termination of withholding.
11-29 (d) An agreement by the parties under this section does not
11-30 modify the terms of an order for spousal maintenance.
11-31 Sec. 8.302. MODIFICATIONS TO OR TERMINATION OF WITHHOLDING
11-32 IN VOLUNTARY WITHHOLDING CASES. (a) If an obligor initiates
11-33 voluntary withholding under Section 8.108, the obligee may file
11-34 with the clerk of the court a notarized request signed by the
11-35 obligor and the obligee for the issuance and delivery to the
11-36 obligor of:
11-37 (1) a modified writ of withholding that reduces the
11-38 amount of withholding; or
11-39 (2) a notice of termination of withholding.
11-40 (b) On receipt of a request under this section, the clerk
11-41 shall issue and deliver a modified writ of withholding or notice of
11-42 termination in the manner provided by Section 8.301.
11-43 (c) The clerk may charge a fee in the amount of $15 for
11-44 issuing and delivering the modified writ of withholding or notice
11-45 of termination.
11-46 (d) An obligee may contest a modified writ of withholding or
11-47 notice of termination issued under this section by requesting a
11-48 hearing in the manner provided by Section 8.258 not later than the
11-49 180th day after the date the obligee discovers that the writ or
11-50 notice was issued.
11-51 Sec. 8.303. TERMINATION OF WITHHOLDING IN MANDATORY
11-52 WITHHOLDING CASES. (a) An obligor for whom withholding for
11-53 maintenance owed or withholding for maintenance and child support
11-54 owed is mandatory may file a motion to terminate withholding. On a
11-55 showing by the obligor that the obligor has complied fully with the
11-56 terms of the maintenance or child support order, as applicable, the
11-57 court shall render an order for the issuance and delivery to the
11-58 obligor of a notice of termination of withholding.
11-59 (b) The clerk shall issue and deliver the notice of
11-60 termination ordered under this section to the obligor.
11-61 (c) The clerk may charge a fee in the amount of $15 for
11-62 issuing and delivering the notice.
11-63 Sec. 8.304. DELIVERY OF ORDER OF REDUCTION OR TERMINATION OF
11-64 WITHHOLDING. Any person may deliver to the obligor's employer a
11-65 certified copy of an order that reduces the amount of spousal
11-66 maintenance to be withheld or terminates the withholding.
11-67 Sec. 8.305. LIABILITY OF EMPLOYERS. The provisions of this
11-68 chapter regarding the liability of employers for withholding apply
11-69 to an order that reduces or terminates withholding.
12-1 SECTION 2. Section 158.207, Family Code, is amended by adding
12-2 Subsection (c) to read as follows:
12-3 (c) An employer who receives more than one order or writ of
12-4 withholding that combines withholding for child support and spousal
12-5 maintenance as provided by Section 8.101 shall withhold income and
12-6 pay the amount withheld in accordance with Section 8.207.
12-7 SECTION 3. (a) This Act takes effect September 1, 2001.
12-8 (b) The change in law made by this Act applies to spousal
12-9 maintenance payments regardless of whether the payments become due
12-10 before, on, or after the effective date of this Act.
12-11 * * * * *