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Family Code - CHAPTER 8

CHAPTER 8. MAINTENANCE

8.001. Definition

     In this chapter, "maintenance" means an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

 

8.002. Eligibility for Maintenance; Court Order

     (a) In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal jurisdiction over an absent spouse, the court may order maintenance for either spouse only if:

     (1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:

     (A) within two years before the date on which a suit for dissolution of the marriage is filed; or

     (B) while the suit is pending; or

     (2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs, as limited by Section 8.005, and the spouse seeking maintenance:

     (A) is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;

     (B) is the custodian of a child who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or

     (C) clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs, as limited by Section 8.005.

     (b) A court may enforce an order for spousal maintenance under this section by ordering garnishment of the wages of the person ordered to pay the maintenance or by any other means available under Section 8.009.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

Amended by Acts 1999, 76th Leg., ch. 62, 6.05, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 304, 1, eff. Sept. 1, 1999.

8.003. Factors in Determining Maintenance

     A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including:

     (1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;

     (2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;

     (3) the duration of the marriage;

     (4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;

     (5) the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;

     (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;

     (7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;

     (8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;

     (9) the property brought to the marriage by either spouse;

     (10) the contribution of a spouse as homemaker;

     (11) marital misconduct of the spouse seeking maintenance; and

     (12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

8.004. Presumption

     (a) Except as provided by Subsection (b), it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in:

     (1) seeking suitable employment; or

     (2) developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.

     (b) This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because of an incapacitating physical or mental disability.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

8.005. Duration of Maintenance Order

     (a) Except as provided by Subsection (b), a court:

     (1) may not order maintenance that remains in effect for more than three years after the date of the order; and

     (2) shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse's minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse's minimum reasonable needs through employment is substantially or totally diminished because of:

     (A) physical or mental disability;

     (B) duties as the custodian of an infant or young child; or

     (C) another compelling impediment to gainful employment.

     (b) If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, the court may order maintenance for an indefinite period for as long as the disability continues. The court may order periodic review of its order, on the request of either party or on its own motion, to determine whether the disability is continuing. The continuation of spousal maintenance under these circumstances is subject to a motion to modify as provided by Section 8.008.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

8.006. Amount of Maintenance

     (a) A court may not order maintenance that requires a spouse to pay monthly more than the lesser of:

     (1) $2,500; or

     (2) 20 percent of the spouse's average monthly gross income.

     (b) The court shall set the amount that a spouse is required to pay in a maintenance order to provide for the minimum reasonable needs of the spouse receiving the maintenance under the order, considering employment or property received in the dissolution of the marriage or otherwise owned by the spouse receiving the maintenance that contributes to the minimum reasonable needs of that spouse.

     (c) Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers' compensation benefits are excluded from maintenance.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

8.007. Termination

     (a) The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the party receiving maintenance.

     (b) After a hearing, the court shall terminate the maintenance order if the party receiving maintenance cohabits with another person in a permanent place of abode on a continuing, conjugal basis.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

8.008. Modification of Maintenance Order

     (a) The amount of maintenance specified in a court order or the portion of a decree that provides for the support of a former spouse may be reduced by the filing of a motion in the court that originally rendered the order. A party affected by the order or the portion of the decree to be modified may file the motion.

     (b) Notice of a motion to modify maintenance and the response, if any, are governed by the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit. Notice must be given by service of citation, and a response must be in the form of an answer due on or before 10 a.m. of the first Monday after 20 days after the date of service. A court shall set a hearing on the motion in the manner provided by Rule 245, Texas Rules of Civil Procedure.

     (c) After a hearing, the court may modify an original or modified order or portion of a decree providing for maintenance on a proper showing of a material and substantial change in circumstances of either party. The court shall apply the modification only to payment accruing after the filing of the motion to modify.

     (d) A loss of employment or circumstances that render a former spouse unable to support himself or herself through appropriate employment by reason of incapacitating physical or mental disability that occur after the divorce or annulment are not grounds for the institution of spousal maintenance for the benefit of the former spouse.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

8.009. Enforcement of Maintenance Order

     (a) The court may enforce by contempt the court's maintenance order or an agreement for the payment of maintenance voluntarily entered into between the parties and approved by the court.

     (b) On the suit to enforce of a party entitled to receive maintenance payments, the court may render judgment against a defaulting party for an amount unpaid and owing after notice by service of citation, answer, if any, and a hearing finding that the defaulting party has failed or refused to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgment for debts.

     (c) It is an affirmative defense to an allegation of contempt of court or the violation of a condition of probation requiring payment of court-ordered maintenance that the obligor:

     (1) lacked the ability to provide maintenance in the amount ordered;

     (2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;

     (3) attempted unsuccessfully to borrow the needed funds; and

     (4) did not know of a source from which the money could have been borrowed or otherwise legally obtained.

     (d) The issue of the existence of an affirmative defense does not arise unless evidence is admitted supporting the defense. If the issue of the existence of an affirmative defense arises, an obligor must prove the affirmative defense by a preponderance of the evidence.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

8.010. Putative Spouse

     In a suit to declare a marriage void, a putative spouse who did not have knowledge of an existing impediment to a valid marriage may be awarded maintenance if otherwise qualified to receive maintenance under this chapter.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

8.011. Unmarried Cohabitants

     An order for maintenance is not authorized between unmarried cohabitants under any circumstances.

Added by Acts 1997, 75th Leg., ch. 7, 1, eff. April 17, 1997.

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