§ 8.001. DEFINITIONS. In this chapter:
(1) "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.
(2) "Notice of application for a writ of withholding"
means the document delivered to an obligor and filed with the court
as required by this chapter for the nonjudicial determination of
arrears and initiation of withholding for spousal maintenance.
(3) "Obligee" means a person entitled to receive
payments under the terms of an order for spousal maintenance.
(4) "Obligor" means a person required to make periodic
payments under the terms of an order for spousal maintenance.
(5) "Writ of withholding" means the document issued by
the clerk of a court and delivered to an employer, directing that
earnings be withheld for payment of spousal maintenance as provided
by this chapter.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1,
2001.
SUBCHAPTER B. COURT-ORDERED MAINTENANCE
§ 8.051. ELIGIBILITY FOR MAINTENANCE; COURT ORDER. 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 8.054, 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 of the marriage of
any age 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 8.054.
§ 8.052. 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.
Renumbered from § 8.003 by Acts 2001, 77th Leg., ch. 807, § 1,
eff. Sept. 1, 2001.
§ 8.053. PRESUMPTION. (a) Except as provided by
Subsection (b), it is presumed that maintenance under Section
8.051(2) 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 the spouse:
(1) has an incapacitating physical or mental
disability; or
(2) is the custodian of a child of the marriage of any
age 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.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Renumbered from § 8.004 by Acts 2001, 77th Leg., ch. 807, § 1,
eff. Sept. 1, 2001. Amended by Acts 2005, 79th Leg., ch. 914, §
2, eff. Sept. 1, 2005.
§ 8.054. 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 the
spouse has an incapacitating physical or mental disability or
because the spouse is the custodian of a child of the marriage of
any age who has a physical or mental disability, the court may order
maintenance 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 continues
to render the spouse unable to support himself or herself through
appropriate employment. The continuation of spousal maintenance
under these circumstances is subject to a motion to modify as
provided by Section 8.057.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Renumbered from § 8.005 and amended by Acts 2001, 77th Leg., ch.
807, § 1, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 914, §
3, eff. Sept. 1, 2005.
§ 8.055. AMOUNT OF MAINTENANCE. (a) A court may not order
maintenance that requires an obligor 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 an obligor is
required to pay in a maintenance order to provide for the minimum
reasonable needs of the obligee, considering employment or property
received in the dissolution of the marriage or otherwise owned by
the obligee that contributes to the minimum reasonable needs of the
obligee.
(c) Department of Veterans Affairs service-connected
disability compensation, social security benefits and disability
benefits, and workers' compensation benefits are excluded from
maintenance.
(d) For purposes of this chapter, "gross income" means
resources as defined in Sections 154.062(b) and (c), disregarding
any deductions listed in Section 154.062(d) and disregarding those
benefits excluded under Subsection (c) of this section.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Renumbered from § 8.006 and amended by Acts 2001, 77th Leg., ch.
807, § 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1138,
§ 1, eff. Sept. 1, 2003.
§ 8.056. TERMINATION. (a) The obligation to pay future
maintenance terminates on the death of either party or on the
remarriage of the obligee.
(b) After a hearing, the court shall terminate the
maintenance order if the obligee 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.
Renumbered from § 8.007 and amended by Acts 2001, 77th Leg., ch.
807, § 1, eff. Sept. 1, 2001.
§ 8.057. 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.
Renumbered from § 8.008 by Acts 2001, 77th Leg., ch. 807, § 1,
eff. Sept. 1, 2001.
§ 8.058. MAINTENANCE ARREARAGES. A spousal maintenance
payment not timely made constitutes an arrearage.
§ 8.059. 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 by an obligee, the court may
render judgment against a defaulting party for the amount of
arrearages 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.
(e) A court may enforce an order for spousal maintenance
under this chapter by ordering garnishment of the obligor's wages
or by any other means available under this section.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Renumbered from § 8.009 and amended by Acts 2001, 77th Leg., ch.
807, § 1, eff. Sept. 1, 2001.
§ 8.060. 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.
Renumbered from § 8.010 by Acts 2001, 77th Leg., ch. 807, § 1,
eff. Sept. 1, 2001.
§ 8.061. 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.
Renumbered from § 8.011 by Acts 2001, 77th Leg., ch. 807, § 1,
eff. Sept. 1, 2001.
