House Bill 901 amends Texas Family Code sections dealing with spousal maintenance (support), and became law on September 1, 2011.
The bill modifies the eligibility for spousal maintenance and makes changes to the factors a court looks at when determining how much and for how long they will receive spousal maintenance.
There is now a "rebuttable presumption" that spousal maintenance is not needed. A rebuttable presumption is an evidentiary burden that can be overcome (rebutted) if evidence is shown to the contrary. To rebut the presumption, the spouse seeking maintenance must lack sufficient property, including the spouse's separate property, to provide for the spouse's minimum reasonable needs.
Additionally, the spouse seeking maintenance must have been a victim of domestic violence within the past 2 years of the filing date of the suit or while the suit is pending or the spouse seeking maintenance is unable to provide for his or her minimum reasonable needs due to a incapacitating physical or mental disability, has been married for 10 years or longer and lacks the ability to earn sufficient income to meet his or her minimum reasonable needs, or is the custodian of a child of the marriage who is disabled and whose care prevents the spouse from earning sufficient income to meet the spouse's minimum reasonable needs.
The legislature has made this change to make more specific what the spouse requesting the maintenance needs to show, removing vague terms like "suitable employment," "self-sufficient" and "gainful employment."
How Long Can Spousal Maintenance Payments Last?
The new law allows a longer period for spousal maintenance payments, and the length of time is tied to the length of the marriage.
The duration of spousal maintenance is now:
- Five years, increased from three, if the spouse making the payments was convicted of domestic violence, or they were married at least 10 years, but not more than 20.
- Seven years, if they were married between 20 and 20 years
- 10 years, if they were married more than 30 years.
The law removes the requirement for "obtaining appropriate employment or developing an appropriate skill" and now ties the duration to "shortest reasonable period" that allows the spouse in need of maintenance to "to earn sufficient income to provide for the spouse's minimum reasonable needs."
Three exceptions to this requirement are:
- Physical or mental disability;
- Necessity of tending to an infant or young child of the marriage; or
- Another "compelling impediment" to earning enough to provide for the "spouse's minimum reasonable needs" ("minimum reasonable needs" used to read "gainful employment").
Minimum Monthly Payment
The maximum monthly maintenance has also increased from $2,500 to $5,000. This is the ceiling on the amount of support the obligor (spouse who must pay support) can be ordered to pay. If the obligor's gross income is less than $5,000 per month, the obligor can only be ordered to pay up to 20 percent of that spouse's average monthly gross income. The definition of gross income for the paying spouse has been made much more specific.
Gross income now includes:
- All wages and salary income and other compensation, such as commissions, overtime pay, tips, and bonuses;
- Interest, dividends, and royalty income;
- Self-employment income;
- Net rental income ; and
- All other income, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes regardless of the source, gifts and prizes, maintenance, and alimony.
- Excluded are: return of principal or capital, accounts receivable, various benefits programs, such as SSI, veteran's benefits, some welfare payments and workers compensation.
Factors In Determining Maintenance
The legislature provides a list of 11 required factors the court must consider when deciding a maintenance question.
They amended some of the factors discussing the financial abilities of each spouse, and added the phrase "minimum reasonable needs" to make the sections consistent.
H.B. 901 changes a few of the factors. In addition to "marital mistreatment," they now add "adultery and cruel treatment, by either spouse during the marriage."
H.B. 901 also amends the section dealing with termination of maintenance. Now, if the oblige (spouse receiving payments) cohabitates (moves in) with someone he or she "has a dating or romantic relationship" with, the court can terminate the maintenance.
The legislature also added a new section that makes clear that until an order for spousal maintenance is terminated by the court, or by death or remarriage of the person receiving the maintenance, the person making the payments must continue their payments.
This also includes any past-due payments, owed prior to the termination, death or remarriage.
The law allows modification of an order providing for spousal maintenance on a showing of a material and substantial change in circumstances.
To determine if a change in circumstance is material and substantial, the court should use all of the 11 factors that would be used in deciding whether to award maintenance in the first instance.
Also added was a provision requiring the return of any overpayment of maintenance, and it authorizes the right to file a lawsuit to recover any overpaid maintenance.