Texas 2011 - 82nd Regular

Texas House Bill HB901 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	By: Thompson, et al. (Senate Sponsor - Harris) H.B. No. 901
2	2	(In the Senate - Received from the House April 27, 2011;
3	3	May 2, 2011, read first time and referred to Committee on
4	4	Jurisprudence; May 12, 2011, reported favorably by the following
5	5	vote: Yeas 7, Nays 0; May 12, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to spousal maintenance.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Sections 8.051 and 8.052, Family Code, are
13	13	amended to read as follows:
14	14	Sec. 8.051. ELIGIBILITY FOR MAINTENANCE; COURT ORDER. In a
15	15	suit for dissolution of a marriage or in a proceeding for
16	16	maintenance in a court with personal jurisdiction over both former
17	17	spouses following the dissolution of their marriage by a court that
18	18	lacked personal jurisdiction over an absent spouse, the court may
19	19	order maintenance for either spouse only if the spouse seeking
20	20	maintenance will lack sufficient property, including the spouse's
21	21	separate property, on dissolution of the marriage to provide for
22	22	the spouse's minimum reasonable needs and:
23	23	(1) the spouse from whom maintenance is requested was
24	24	convicted of or received deferred adjudication for a criminal
25	25	offense that also constitutes an act of family violence, as defined
26	26	by Section 71.004, committed during the marriage against the other
27	27	spouse or the other spouse's child and the offense occurred:
28	28	(A) within two years before the date on which a
29	29	suit for dissolution of the marriage is filed; or
30	30	(B) while the suit is pending; or
31	31	(2) the spouse seeking maintenance:
32	32	(A) is unable to earn sufficient income to
33	33	provide for the spouse's minimum reasonable needs because of an
34	34	incapacitating physical or mental disability;
35	35	(B) has been married to the other spouse for 10
36	36	years or longer and lacks the ability to earn sufficient income to
37	37	provide for the spouse's minimum reasonable needs; or
38	38	(C) [:
39	39	[(1) the spouse from whom maintenance is requested was
40	40	convicted of or received deferred adjudication for a criminal
41	41	offense that also constitutes an act of family violence under Title
42	42	4 and the offense occurred:
43	43	[(A) within two years before the date on which a
44	44	suit for dissolution of the marriage is filed; or
45	45	[(B) while the suit is pending; or
46	46	[(2) the duration of the marriage was 10 years or
47	47	longer, the spouse seeking maintenance lacks sufficient property,
48	48	including property distributed to the spouse under this code, to
49	49	provide for the spouse's minimum reasonable needs, as limited by
50	50	Section 8.054, and the spouse seeking maintenance:
51	51	[(A) is unable to support himself or herself
52	52	through appropriate employment because of an incapacitating
53	53	physical or mental disability;
54	54	[(B)] is the custodian of a child of the marriage
55	55	of any age who requires substantial care and personal supervision
56	56	because of a physical or mental disability that prevents the spouse
57	57	from earning sufficient income to provide for the spouse's minimum
58	58	reasonable needs [makes it necessary, taking into consideration the
59	59	needs of the child, that the spouse not be employed outside the
60	60	home; or
61	61	[(C) clearly lacks earning ability in the labor
62	62	market adequate to provide support for the spouse's minimum
63	63	reasonable needs, as limited by Section 8.054].
64	64	Sec. 8.052. FACTORS IN DETERMINING MAINTENANCE. A court
65	65	that determines that a spouse is eligible to receive maintenance
66	66	under this chapter shall determine the nature, amount, duration,
67	67	and manner of periodic payments by considering all relevant
68	68	factors, including:
69	69	(1) each [the financial resources of the spouse
70	70	seeking maintenance, including the community and separate property
71	71	and liabilities apportioned to that spouse in the dissolution
72	72	proceeding, and that] spouse's ability to provide for that [meet
73	73	the] spouse's minimum reasonable needs independently, considering
74	74	that spouse's financial resources on dissolution of the marriage;
75	75	(2) the education and employment skills of the
76	76	spouses, the time necessary to acquire sufficient education or
77	77	training to enable the spouse seeking maintenance to earn
78	78	sufficient income, and [find appropriate employment,] the
79	79	availability and feasibility of that education or training[, and
80	80	the feasibility of that education or training];
81	81	(3) the duration of the marriage;
82	82	(4) the age, employment history, earning ability, and
83	83	physical and emotional condition of the spouse seeking maintenance;
84	84	(5) the effect on each spouse's ability to provide for
85	85	that spouse's minimum reasonable needs while providing [of the
86	86	spouse from whom maintenance is requested to meet that spouse's
87	87	personal needs and to provide] periodic child support payments or
88	88	maintenance, if applicable[, while meeting the personal needs of
89	89	the spouse seeking maintenance];
90	90	(6) acts by either spouse resulting in excessive or
91	91	abnormal expenditures or destruction, concealment, or fraudulent
92	92	disposition of community property, joint tenancy, or other property
93	93	held in common;
94	94	(7) [the comparative financial resources of the
95	95	spouses, including medical, retirement, insurance, or other
96	96	benefits, and the separate property of each spouse;
97	97	[(8)] the contribution by one spouse to the education,
98	98	training, or increased earning power of the other spouse;
99	99	(8) [(9)] the property brought to the marriage by
100	100	either spouse;
101	101	(9) [(10)] the contribution of a spouse as homemaker;
102	102	(10) [(11)] marital misconduct, including adultery
103	103	and cruel treatment, by either spouse during the marriage [of the
104	104	spouse seeking maintenance]; and
105	105	(11) any history or pattern of family violence, as
106	106	defined by Section 71.004 [(12) the efforts of the spouse seeking
107	107	maintenance to pursue available employment counseling as provided
108	108	by Chapter 304, Labor Code].
109	109	SECTION 2. Section 8.053(a), Family Code, is amended to
110	110	read as follows:
111	111	(a) It [Except as provided by Subsection (b), it] is a
112	112	rebuttable presumption [presumed] that maintenance under Section
113	113	8.051(2)(B) [8.051(2)] is not warranted unless the spouse seeking
114	114	maintenance has exercised diligence in:
115	115	(1) earning sufficient income to provide for the
116	116	spouse's minimum reasonable needs [seeking suitable employment];
117	117	or
118	118	(2) developing the necessary skills to provide for the
119	119	spouse's minimum reasonable needs [become self-supporting] during
120	120	a period of separation and during the time the suit for dissolution
121	121	of the marriage is pending.
122	122	SECTION 3. Section 8.054, Family Code, is amended to read as
123	123	follows:
124	124	Sec. 8.054. DURATION OF MAINTENANCE ORDER. (a) Except as
125	125	provided by Subsection (b), a court:
126	126	(1) may not order maintenance that remains in effect
127	127	for more than:
128	128	(A) five [three] years after the date of the
129	129	order, if:
130	130	(i) the spouses were married to each other
131	131	for less than 10 years and the eligibility of the spouse for whom
132	132	maintenance is ordered is established under Section 8.051(1); or
133	133	(ii) the spouses were married to each other
134	134	for at least 10 years but not more than 20 years;
135	135	(B) seven years after the date of the order, if
136	136	the spouses were married to each other for at least 20 years but not
137	137	more than 30 years; or
138	138	(C) 10 years after the date of the order, if the
139	139	spouses were married to each other for 30 years or more; and
140	140	(2) shall limit the duration of a maintenance order to
141	141	the shortest reasonable period that allows the spouse seeking
142	142	maintenance to earn sufficient income to provide for [meet] the
143	143	spouse's minimum reasonable needs [by obtaining appropriate
144	144	employment or developing an appropriate skill], unless the ability
145	145	of the spouse to provide for the spouse's minimum reasonable needs
146	146	[through employment] is substantially or totally diminished
147	147	because of:
148	148	(A) physical or mental disability of the spouse
149	149	seeking maintenance;
150	150	(B) duties as the custodian of an infant or young
151	151	child of the marriage; or
152	152	(C) another compelling impediment to earning
153	153	sufficient income to provide for the spouse's minimum reasonable
154	154	needs [gainful employment].
155	155	(b) The [If a spouse seeking maintenance is unable to
156	156	support himself or herself through appropriate employment because
157	157	the spouse has an incapacitating physical or mental disability or
158	158	because the spouse is the custodian of a child of the marriage of
159	159	any age who has a physical or mental disability, the] court may
160	160	order maintenance for a spouse to whom Section 8.051(2)(A) or (C)
161	161	applies for as long as the spouse continues to satisfy the
162	162	eligibility criteria prescribed by the applicable provision [the
163	163	disability continues. The court may order periodic review of its
164	164	order, on the request of either party or on its own motion, to
165	165	determine whether the disability continues to render the spouse
166	166	unable to support himself or herself through appropriate
167	167	employment. The continuation of spousal maintenance under these
168	168	circumstances is subject to a motion to modify as provided by
169	169	Section 8.057].
170	170	(c) On the request of either party or on the court's own
171	171	motion, the court may order the periodic review of its order for
172	172	maintenance under Subsection (b).
173	173	(d) The continuation of maintenance ordered under
174	174	Subsection (b) is subject to a motion to modify as provided by
175	175	Section 8.057.
176	176	SECTION 4. Section 8.055, Family Code, is amended by
177	177	amending Subsection (a) and adding Subsection (a-1) to read as
178	178	follows:
179	179	(a) A court may not order maintenance that requires an
180	180	obligor to pay monthly more than the lesser of:
181	181	(1) $5,000 [$2,500]; or
182	182	(2) 20 percent of the spouse's average monthly gross
183	183	income.
184	184	(a-1) For purposes of this chapter, gross income:
185	185	(1) includes:
186	186	(A) 100 percent of all wage and salary income and
187	187	other compensation for personal services (including commissions,
188	188	overtime pay, tips, and bonuses);
189	189	(B) interest, dividends, and royalty income;
190	190	(C) self-employment income;
191	191	(D) net rental income (defined as rent after
192	192	deducting operating expenses and mortgage payments, but not
193	193	including noncash items such as depreciation); and
194	194	(E) all other income actually being received,
195	195	including severance pay, retirement benefits, pensions, trust
196	196	income, annuities, capital gains, unemployment benefits, interest
197	197	income from notes regardless of the source, gifts and prizes,
198	198	maintenance, and alimony; and
199	199	(2) does not include:
200	200	(A) return of principal or capital;
201	201	(B) accounts receivable;
202	202	(C) benefits paid in accordance with federal
203	203	public assistance programs;
204	204	(D) benefits paid in accordance with the
205	205	Temporary Assistance for Needy Families program;
206	206	(E) payments for foster care of a child;
207	207	(F) Department of Veterans Affairs
208	208	service-connected disability compensation;
209	209	(G) supplemental security income (SSI), social
210	210	security benefits, and disability benefits; or
211	211	(H) workers' compensation benefits.
212	212	SECTION 5. Section 8.056, Family Code, is amended by
213	213	amending Subsection (b) and adding Subsection (c) to read as
214	214	follows:
215	215	(b) After a hearing, the court shall order the termination
216	216	of [terminate] the maintenance obligation [order] if the court
217	217	finds that the obligee cohabits with another person with whom the
218	218	obligee has a dating or romantic relationship in a permanent place
219	219	of abode on a continuing[, conjugal] basis.
220	220	(c) Termination of the maintenance obligation does not
221	221	terminate the obligation to pay any maintenance that accrued before
222	222	the date of termination, whether as a result of death or remarriage
223	223	under Subsection (a) or a court order under Subsection (b).
224	224	SECTION 6. Sections 8.057(c) and (d), Family Code, are
225	225	amended to read as follows:
226	226	(c) After a hearing, the court may modify an original or
227	227	modified order or portion of a decree providing for maintenance on a
228	228	proper showing of a material and substantial change in
229	229	circumstances, including circumstances reflected in the factors
230	230	specified in Section 8.052, relating to [of] either party or to a
231	231	child of the marriage described by Section 8.051(2)(C), if
232	232	applicable. The court shall apply the modification only to payment
233	233	accruing after the filing of the motion to modify.
234	234	(d) A loss of employment or circumstances that render a
235	235	former spouse unable to provide for the spouse's minimum reasonable
236	236	needs [support himself or herself through appropriate employment]
237	237	by reason of incapacitating physical or mental disability that
238	238	occur after the divorce or annulment are not grounds for the
239	239	institution of spousal maintenance for the benefit of the former
240	240	spouse.
241	241	SECTION 7. Sections 8.059(a), (b), and (d), Family Code,
242	242	are amended to read as follows:
243	243	(a) The court may enforce by contempt against the obligor
244	244	the court's maintenance order or an agreement for the payment of
245	245	maintenance under the terms of this chapter voluntarily entered
246	246	into between the parties and approved by the court. The court may
247	247	not enforce by contempt any provision of an agreed order for
248	248	maintenance for any period of maintenance beyond the period of
249	249	maintenance the court could have ordered under this chapter.
250	250	(b) On the suit to enforce by an obligee, the court may
251	251	render judgment against a defaulting party for the amount of
252	252	arrearages after notice by service of citation, answer, if any, and
253	253	a hearing finding that the defaulting party has failed or refused to
254	254	comply with [carry out] the terms of the order. The judgment may be
255	255	enforced by any means available for the enforcement of judgment for
256	256	debts.
257	257	(d) The issue of the existence of an affirmative defense
258	258	does not arise until pleaded. An [unless evidence is admitted
259	259	supporting the defense. If the issue of the existence of an
260	260	affirmative defense arises, an] obligor must prove the affirmative
261	261	defense by a preponderance of the evidence.
262	262	SECTION 8. Subchapter B, Chapter 8, Family Code, is amended
263	263	by adding Section 8.0591 to read as follows:
264	264	Sec. 8.0591. OVERPAYMENT. (a) If an obligor is not in
265	265	arrears on the obligor's maintenance obligation and the obligor's
266	266	maintenance obligation has terminated, the obligee must return to
267	267	the obligor any maintenance payment made by the obligor that
268	268	exceeds the amount of maintenance ordered or approved by the court,
269	269	regardless of whether the payment was made before, on, or after the
270	270	date the maintenance obligation terminated.
271	271	(b) An obligor may file a suit to recover overpaid
272	272	maintenance under Subsection (a). If the court finds that the
273	273	obligee failed to return overpaid maintenance under Subsection (a),
274	274	the court shall order the obligee to pay the obligor's attorney's
275	275	fees and all court costs in addition to the amount of the overpaid
276	276	maintenance. For good cause shown, the court may waive the
277	277	requirement that the obligee pay attorney's fees and court costs if
278	278	the court states in its order the reasons supporting that finding.
279	279	SECTION 9. The following provisions of the Family Code are
280	280	repealed:
281	281	(1) Section 8.053(b);
282	282	(2) Sections 8.055(b), (c), and (d); and
283	283	(3) Section 8.059(e).
284	284	SECTION 10. (a) Except as provided by Subsection (b) of
285	285	this section, the changes in law made by this Act to Subchapter B,
286	286	Chapter 8, Family Code, apply only to a suit for dissolution of a
287	287	marriage or proceeding for maintenance that was commenced on or
288	288	after the effective date of this Act. A suit for dissolution of a
289	289	marriage or proceeding for maintenance commenced before the
290	290	effective date of this Act is governed by the law in effect on the
291	291	date the suit or proceeding was commenced, and the former law is
292	292	continued in effect for that purpose.
293	293	(b) Section 8.0591, Family Code, as added by this Act,
294	294	applies to an order for maintenance under Subchapter B, Chapter 8,
295	295	Family Code, regardless of whether the order was rendered before,
296	296	on, or after the effective date of this Act.
297	297	SECTION 11. This Act takes effect September 1, 2011.
298	298	* * * * *