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§ 2.001. MARRIAGE LICENSE. (a) A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state.
(b) A license may not be issued for the marriage of persons of the same sex.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.002. APPLICATION FOR LICENSE. Except as provided by Section 2.006, each person applying for a license must:
(1) appear before the county clerk; (2) submit the person's proof of identity and age as provided by this subchapter;
(3) provide the information applicable to that person for which spaces are provided in the application for a marriage license;
(4) mark the appropriate boxes provided in the application; and (5) take the oath printed on the application and sign the application before the county clerk.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.003. APPLICATION FOR LICENSE BY MINOR. In addition to the other requirements provided by this chapter, a person under 18 years of age applying for a license must provide to the county clerk:
(1) documents establishing, as provided by Section 2.102, parental consent for the person to the marriage;
(2) documents establishing that a prior marriage of the person has been dissolved; or
(3) a court order granted under Section 2.103 authorizing the marriage of the person.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.004. APPLICATION FORM. (a) The county clerk shall furnish the application form as prescribed by the bureau of vital statistics.
(b) The application form must contain: (1) a heading entitled "Application for Marriage License, ___________ County, Texas";
(2) spaces for each applicant's full name, including the woman's maiden surname, address, social security number, if any, date of birth, and place of birth, including city, county, and state;
(3) a space for indicating the document tendered by each applicant as proof of identity and age;
(4) spaces for indicating whether each applicant has been divorced within the last 30 days;
(5) printed boxes for each applicant to check "true" or "false" in response to the following statement: "I am not presently married and the other applicant is not presently married.";
(6) printed boxes for each applicant to check "true" or "false" in response to the following statement: "The other applicant is not related to me as:
(A) an ancestor or descendant, by blood or adoption; (B) a brother or sister, of the whole or half blood or by adoption; (C) a parent's brother or sister, of the whole or half blood or by adoption;
(D) a son or daughter of a brother or sister, of the whole or half blood or by adoption;
(E) a current or former stepchild or stepparent; or (F) a son or daughter of a parent's brother or sister, of the whole or half blood or by adoption.";
(7) printed boxes for each applicant to check "true" or "false" in response to the following statement: "I am not presently delinquent in the payment of court-ordered child support.";
(8) a printed oath reading: "I SOLEMNLY SWEAR (OR AFFIRM) THAT THE INFORMATION I HAVE GIVEN IN THIS APPLICATION IS CORRECT.";
(9) spaces immediately below the printed oath for the applicants' signatures;
(10) a certificate of the county clerk that: (A) each applicant made the oath and the date and place that it was made; or
(B) an applicant did not appear personally but the prerequisites for the license have been fulfilled as provided by this chapter;
(11) spaces for indicating the date of the marriage and the county in which the marriage is performed; and
(12) a space for the address to which the applicants desire the completed license to be mailed.
(c) An applicant commits an offense if the applicant knowingly provides false information under Subsection (b)(1), (2), (3), or (4). An offense under this subsection is a Class C misdemeanor.
(d) An applicant commits an offense if the applicant knowingly provides false information under Subsection (b)(5) or (6). An offense under this subsection is a Class A misdemeanor.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1997, 75th Leg., ch. 776, § 1, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 4.05, eff. Sept. 1, 2005.
§ 2.005. PROOF OF IDENTITY AND AGE. (a) The county clerk shall require proof of the identity and age of each applicant.
(b) The proof must be established by a certified copy of the applicant's birth certificate or by some certificate, license, or document issued by this state or another state, the United States, or a foreign government.
(c) A person commits an offense if the person knowingly provides false, fraudulent, or otherwise inaccurate proof of an applicant's identity or age under this section. An offense under this subsection is a Class A misdemeanor.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 268, § 4.06, eff. Sept. 1, 2005.
§ 2.006. ABSENT APPLICANT. (a) If an applicant is unable to appear personally before the county clerk to apply for a marriage license, any adult person or the other applicant may apply on behalf of the absent applicant.
(b) The person applying on behalf of an absent applicant shall provide to the clerk:
(1) the affidavit of the absent applicant as provided by this subchapter; (2) proof of the identity and age of the absent applicant as provided by this subchapter; and
(3) if required because the absent applicant is a person under 18 years of age, the documents establishing parental consent, documents establishing that a prior marriage has been dissolved, or a court order authorizing the marriage of the absent, underage applicant.
(c) Notwithstanding Subsection (a), the clerk may not issue a marriage license for which both applicants are absent unless the person applying on behalf of each absent applicant provides to the clerk an affidavit of the applicant declaring that the applicant is:
(1) on active duty as a member of the armed forces of the United States or the state military forces; or
(2) confined in a correctional facility, as defined by Section 1.07, Penal Code.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 947, § 1, eff. Sept. 1, 2005.
§ 2.007. AFFIDAVIT OF ABSENT APPLICANT. The affidavit of an absent applicant must include:
(1) the absent applicant's full name, including the maiden surname of a female applicant, address, date of birth, place of birth, including city, county, and state, citizenship, and social security number, if any;
(2) a declaration that the absent applicant has not been divorced within the last 30 days;
(3) a declaration that the absent applicant is: (A) not presently married; or (B) married to the other applicant and they wish to marry again; (4) a declaration that the other applicant is not presently married and is not related to the absent applicant as:
(A) an ancestor or descendant, by blood or adoption; (B) a brother or sister, of the whole or half blood or by adoption; (C) a parent's brother or sister, of the whole or half blood or by adoption;
(D) a son or daughter of a brother or sister, of the whole or half blood or by adoption;
(E) a current or former stepchild or stepparent; or (F) a son or daughter of a parent's brother or sister, of the whole or half blood or by adoption;
(5) a declaration that the absent applicant desires to marry and the name, age, and address of the person to whom the absent applicant desires to be married;
(6) the approximate date on which the marriage is to occur; (7) the reason the absent applicant is unable to appear personally before the county clerk for the issuance of the license; and
(8) if the absent applicant will be unable to attend the ceremony, the appointment of any adult, other than the other applicant, to act as proxy for the purpose of participating in the ceremony.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 268, § 4.07, eff. Sept. 1, 2005.
§ 2.008. EXECUTION OF APPLICATION BY CLERK. (a) The county clerk shall: (1) determine that all necessary information, other than the date of the marriage ceremony, the county in which the ceremony is conducted, and the name of the person who performs the ceremony, is recorded on the application and that all necessary documents are submitted;
(2) administer the oath to each applicant appearing before the clerk; (3) have each applicant appearing before the clerk sign the application in the clerk's presence; and
(4) execute the clerk's certificate on the application. (b) A person appearing before the clerk on behalf of an absent applicant is not required to take the oath on behalf of the absent applicant.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.009. ISSUANCE OF LICENSE. (a) Except as provided by Subsections (b) and (d), the county clerk may not issue a license if either applicant:
(1) fails to provide the information required by this subchapter; (2) fails to submit proof of age and identity; (3) is under 16 years of age and has not been granted a court order as provided by Section 2.103;
(4) is 16 years of age or older but under 18 years of age and has not presented at least one of the following:
(A) parental consent as provided by Section 2.102; (B) documents establishing that a prior marriage of the applicant has been dissolved; or
(C) a court order as provided by Section 2.103; (5) checks "false" in response to a statement in the application, except as provided by Subsection (b) or (d), or fails to make a required declaration in an affidavit required of an absent applicant; or
(6) indicates that the applicant has been divorced by a decree of a court of this state within the last 30 days, unless:
(A) the applicants were divorced from each other; or (B) the prohibition against remarriage is waived as provided by Section 6.802.
(b) If an applicant checks "false" in response to the statement "I am not presently married and the other applicant is not presently married," the county clerk shall inquire as to whether the applicant is presently married to the other applicant. If the applicant states that the applicant is currently married to the other applicant, the county clerk shall record that statement on the license before the administration of the oath. The county clerk may not refuse to issue a license on the ground that the applicants are already married to each other.
(c) On the proper execution of the application, the clerk shall: (1) prepare the license; (2) enter on the license the names of the licensees, the date that the license is issued, and, if applicable, the name of the person appointed to act as proxy for an absent applicant, if any;
(3) record the time at which the license was issued; (4) distribute to each applicant printed materials about acquired immune deficiency syndrome (AIDS) and human immunodeficiency virus (HIV) and note on the license that the distribution was made; and
(5) distribute to each applicant a premarital education handbook provided by the attorney general under Section 2.014.
(d) The county clerk may not refuse to issue a license to an applicant on the ground that the applicant checked "false" in response to the statement "I am not presently delinquent in the payment of court-ordered child support."
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1997, 75th Leg., ch. 776, § 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, § 6.01(a), eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 185, § 1, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 268, § 4.08, eff. Sept. 1, 2005.
§ 2.010. AIDS INFORMATION. Materials providing information about acquired immune deficiency syndrome (AIDS) and human immunodeficiency virus (HIV) shall be prepared and provided to the clerk by the Texas Department of Health and shall be designed to inform the applicants about:
(1) the incidence and mode of transmission of AIDS and HIV; (2) the local availability of medical procedures, including voluntary testing, designed to show or help show whether a person has AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS; and
(3) available and appropriate counseling services regarding AIDS and HIV infection.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.011. RECORDING. The county clerk shall record all licenses issued by the clerk and all documents submitted with an application for a license or note a summary of the documents on the application.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.012. VIOLATION BY COUNTY CLERK; PENALTY. A county clerk or deputy county clerk who violates or fails to comply with this subchapter commits an offense. An offense under this section is a misdemeanor punishable by a fine of not less than $200 and not more than $500.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.013. PREMARITAL EDUCATION REQUIREMENTS; WAIVER. (a) Each person applying for a marriage license is encouraged to attend a premarital education course of at least four hours during the year preceding the date of the application for the license.
(b) The course under Subsection (a) may be completed by: (1) personal instruction; (2) videotape instruction; (3) instruction through an electronic medium; or (4) a combination of these methods. (c) A premarital education course should include instruction in: (1) conflict management; (2) communication skills; (3) children and parenting responsibilities; and (4) financial responsibilities. (d) A course under this section should be offered by: (1) a mental health professional who holds at least a master's degree with a background in family therapy; or
(2) a religious practitioner who performs counseling consistent with the laws of this state or another person designated as a program counselor by a church or religious institution.
(e) Each county clerk may maintain a roster of area course providers who meet the requirements of this section, including providers who offer the course on a sliding scale or without charge. The clerk may provide a copy of the roster on request to an applicant for a marriage license.
(f) An applicant for a marriage license who takes a course under this section shall pay any fee charged for the course.
(g) A person who seeks to be listed as a course provider on a list maintained under Subsection (e) shall notify the county clerk of the county in which the person intends to offer a course. The notification must include the applicant's professional license number or evidence of the person's position or affiliation with a church or religious institution, as appropriate, and an address at which the course provider may be contacted.
Added by Acts 1999, 76th Leg., ch. 185, § 2, eff. Sept. 1, 1999.
§ 2.014. FAMILY TRUST FUND. (a) The family trust fund is created as a trust fund with the state comptroller and shall be administered by the attorney general for the beneficiaries of the fund.
(b) Money in the trust fund is derived from depositing $3 of each marriage license fee as authorized under Section 118.018(c), Local Government Code, and may be used only for:
(1) the development and distribution of a premarital education handbook; (2) grants to institutions of higher education having academic departments that are capable of research on marriage and divorce that will assist in determining programs, courses, and policies to help strengthen families and assist children whose parents are divorcing;
(3) support for counties to create or administer free or low-cost premarital education courses;
(4) programs intended to reduce the amount of delinquent child support; and
(5) other programs the attorney general determines will assist families in this state.
(c) The premarital education handbook under Subsection (b)(1) shall be distributed to each applicant for a marriage license as provided by Section 2.009(c)(5) and shall contain information on:
(1) conflict management; (2) communication skills; (3) children and parenting responsibilities; and (4) financial responsibilities. (d) The attorney general shall appoint an advisory committee to assist in the development of the premarital education handbook. The advisory committee shall consist of nine members, including at least three members who are eligible under Section 2.013(d) to provide a premarital education course. A member of the advisory committee is not entitled to reimbursement of the member's expenses.
Added by Acts 1999, 76th Leg., ch. 185, § 2, eff. Sept. 1, 1999.
SUBCHAPTER B. UNDERAGE APPLICANTS
§ 2.101. GENERAL AGE REQUIREMENT. Except as otherwise provided by this subchapter or on a showing that a prior marriage has been dissolved, a county clerk may not issue a marriage license if either applicant is under 18 years of age.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.102. PARENTAL CONSENT FOR UNDERAGE APPLICANT. (a) If an applicant is 16 years of age or older but under 18 years of age, the county clerk shall issue the license if parental consent is given as provided by this section.
(b) Parental consent must be evidenced by a written declaration on a form supplied by the county clerk in which the person consents to the marriage and swears that the person is a parent (if there is no judicially designated managing conservator or guardian of the applicant's person) or a judicially designated managing conservator or guardian (whether an individual, authorized agency, or court) of the applicant's person.
(c) Except as otherwise provided by this section, consent must be acknowledged before a county clerk.
(d) If the person giving parental consent resides in another state, the consent may be acknowledged before an officer authorized to issue marriage licenses in that state.
(e) If the person giving parental consent is unable because of illness or incapacity to comply with the provisions of Subsection (c) or (d), the consent may be acknowledged before any officer authorized to take acknowledgments. A consent under this subsection must be accompanied by a physician's affidavit stating that the person giving parental consent is unable to comply because of illness or incapacity.
(f) Parental consent must be given at the time the application for the marriage license is made or not earlier than the 30th day preceding the date the application is made.
(g) A person commits an offense if the person knowingly provides parental consent for an underage applicant under this section and the person is not a parent or a judicially designated managing conservator or guardian of the applicant. An offense under this subsection is a Class A misdemeanor.
(h) A parent or judicially designated managing conservator or guardian of an applicant commits an offense if the parent, managing conservator, or guardian knowingly provides parental consent under this section for an applicant who is younger than 16 years of age or who is presently married to a person other than the person the applicant desires to marry. An offense under this subsection is a felony of the third degree.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 268, § 4.09, eff. Sept. 1, 2005.
§ 2.103. COURT ORDER FOR UNDERAGE APPLICANT. (a) A minor may petition the court in the minor's own name for an order granting permission to marry. In a suit under this section, the trial judge may advance the suit if the best interest of the applicant would be served by an early hearing.
(b) The petition must be filed in the county where a parent resides if a managing conservator or a guardian of the person has not been appointed. If a managing conservator or a guardian of the person has been appointed, the petition must be filed in the county where the managing conservator or the guardian of the person resides. If no person authorized to consent to marriage for the minor resides in this state, the petition must be filed in the county where the minor lives.
(c) The petition must include: (1) a statement of the reasons the minor desires to marry; (2) a statement of whether each parent is living or is dead; (3) the name and residence address of each living parent; and (4) a statement of whether a managing conservator or a guardian of the person has been appointed for the minor.
(d) Process shall be served as in other civil cases on each living parent of the minor or, if a managing conservator or a guardian of the person has been appointed, on the managing conservator or guardian of the person. Citation may be given by publication as in other civil cases, except that notice shall be published one time only.
(e) The court shall appoint an amicus attorney or an attorney ad litem to represent the minor in the proceeding. The court shall specify a fee to be paid by the minor for the services of the amicus attorney or attorney ad litem. The fee shall be collected in the same manner as other costs of the proceeding.
(f) If after a hearing the court, sitting without a jury, believes marriage to be in the best interest of the minor, the court, by order, shall grant the minor permission to marry.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 172, § 12, eff. Sept. 1, 2005.
SUBCHAPTER C. CEREMONY AND RETURN OF LICENSE
§ 2.201. EXPIRATION OF LICENSE. If a marriage ceremony has not been conducted before the 31st day after the date the license is issued, the marriage license expires.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.202. PERSONS AUTHORIZED TO CONDUCT CEREMONY. (a) The following persons are authorized to conduct a marriage ceremony:
(1) a licensed or ordained Christian minister or priest; (2) a Jewish rabbi; (3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony; and
(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, or judge or magistrate of a federal court of this state.
(b) For the purposes of this section, a retired judge or justice is a former judge or justice who is vested in the Judicial Retirement System of Texas Plan One or the Judicial Retirement System of Texas Plan Two or who has an aggregate of at least 12 years of service as judge or justice of any type listed in Subsection (a)(4).
(c) Except as provided by Subsection (d), a person commits an offense if the person knowingly conducts a marriage ceremony without authorization under this section. An offense under this subsection is a Class A misdemeanor.
(d) A person commits an offense if the person knowingly conducts a marriage ceremony of a minor whose marriage is prohibited by law or of a person who by marrying commits an offense under Section 25.01, Penal Code. An offense under this subsection is a felony of the third degree.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 268, § 4.10, eff. Sept. 1, 2005.
§ 2.203. CEREMONY. (a) On receiving an unexpired marriage license, an authorized person may conduct the marriage ceremony as provided by this subchapter.
(b) A person unable to appear for the ceremony may assent to marriage by the appearance of a proxy appointed in the affidavit authorized by Subchapter A.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.204. 72-HOUR WAITING PERIOD; EXCEPTIONS. (a) Except as provided by this section, a marriage ceremony may not take place during the 72-hour period immediately following the issuance of the marriage license.
(b) The 72-hour waiting period after issuance of a marriage license does not apply to an applicant who:
(1) is a member of the armed forces of the United States and on active duty;
(2) is not a member of the armed forces of the United States but performs work for the United States Department of Defense as a department employee or under a contract with the department; or
(3) obtains a written waiver under Subsection (c). (c) An applicant may request a judge of a court with jurisdiction in family law cases, a justice of the supreme court, a judge of the court of criminal appeals, a county judge, or a judge of a court of appeals for a written waiver permitting the marriage ceremony to take place during the 72-hour period immediately following the issuance of the marriage license. If the judge finds that there is good cause for the marriage to take place during the period, the judge shall sign the waiver. Notwithstanding any other provision of law, a judge under this section has the authority to sign a waiver under this section.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1999, 76th Leg., ch. 1052, § 1, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 1196, § 1, eff. June 18, 2005.
§ 2.205. DISCRIMINATION IN CONDUCTING MARRIAGE PROHIBITED. (a) A person authorized to conduct a marriage ceremony by this subchapter is prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married.
(b) On a finding by the State Commission on Judicial Conduct that a person has intentionally violated Subsection (a), the commission may recommend to the supreme court that the person be removed from office.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.206. RETURN OF LICENSE; PENALTY. (a) The person who conducts a marriage ceremony shall record on the license the date on which and the county in which the ceremony is performed and the person's name, subscribe the license, and return the license to the county clerk who issued it not later than the 30th day after the date the ceremony is conducted.
(b) A person who fails to comply with this section commits an offense. An offense under this section is a misdemeanor punishable by a fine of not less than $200 and not more than $500.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.207. MARRIAGE CONDUCTED AFTER LICENSE EXPIRED; PENALTY. (a) A person who is to conduct a marriage ceremony shall determine whether the license has expired from the county clerk's endorsement on the license.
(b) A person who conducts a marriage ceremony after the marriage license has expired commits an offense. An offense under this section is a misdemeanor punishable by a fine of not less than $200 and not more than $500.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.208. RECORDING AND DELIVERY OF LICENSE. (a) The county clerk shall record a returned marriage license and mail the license to the address indicated on the application.
(b) On the application form the county clerk shall record: (1) the date of the marriage ceremony; (2) the county in which the ceremony was conducted; and (3) the name of the person who conducted the ceremony.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.209. DUPLICATE LICENSE. (a) On the application and proof of identity of a person whose marriage is recorded in the records of the county clerk, the county clerk shall issue a duplicate marriage license completed with information as contained in the records.
(b) On the application and proof of identity of both persons to whom a marriage license was issued but not recorded as required by Section 2.208, the county clerk shall issue a duplicate license if each person applying submits to the clerk an affidavit stating:
(1) that the persons to whom the original license was issued were married to each other before the expiration date of the original license by a person authorized to conduct a marriage ceremony;
(2) the name of the person who conducted the ceremony; and (3) the date of the ceremony.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
SUBCHAPTER D. VALIDITY OF MARRIAGE
§ 2.301. FRAUD, MISTAKE, OR ILLEGALITY IN OBTAINING LICENSE. Except as otherwise provided by this chapter, the validity of a marriage is not affected by any fraud, mistake, or illegality that occurred in obtaining the marriage license.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 2.302. CEREMONY CONDUCTED BY UNAUTHORIZED PERSON. The validity of a marriage is not affected by the lack of authority of the person conducting the marriage ceremony if:
(1) there was a reasonable appearance of authority by that person; (2) at least one party to the marriage participated in the ceremony in good faith and that party treats the marriage as valid; and
(3) neither party to the marriage: (A) is a minor whose marriage is prohibited by law; or (B) by marrying commits an offense under Section 25.01, Penal Code.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 268, § 4.11, eff. Sept. 1, 2005.
SUBCHAPTER E. MARRIAGE WITHOUT FORMALITIES
§ 2.401. PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as provided by this subchapter; or
(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
(b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.
(c) A person under 18 years of age may not: (1) be a party to an informal marriage; or (2) execute a declaration of informal marriage under Section 2.402. (d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1997, 75th Leg., ch. 1362, § 1, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 4.12, eff. Sept. 1, 2005.
§ 2.402. DECLARATION AND REGISTRATION OF INFORMAL MARRIAGE. (a) A declaration of informal marriage must be signed on a form prescribed by the bureau of vital statistics and provided by the county clerk. Each party to the declaration shall provide the information required in the form.
(b) The declaration form must contain: (1) a heading entitled "Declaration and Registration of Informal Marriage, ___________ County, Texas";
(2) spaces for each party's full name, including the woman's maiden surname, address, date of birth, place of birth, including city, county, and state, and social security number, if any;
(3) a space for indicating the type of document tendered by each party as proof of age and identity;
(4) printed boxes for each party to check "true" or "false" in response to the following statement: "The other party is not related to me as:
(A) an ancestor or descendant, by blood or adoption; (B) a brother or sister, of the whole or half blood or by adoption; (C) a parent's brother or sister, of the whole or half blood or by adoption;
(D) a son or daughter of a brother or sister, of the whole or half blood or by adoption;
(E) a current or former stepchild or stepparent; or (F) a son or daughter of a parent's brother or sister, of the whole or half blood or by adoption.";
(5) a printed declaration and oath reading: "I SOLEMNLY SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO EACH OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE) WE AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED TOGETHER AS HUSBAND AND WIFE AND IN THIS STATE WE REPRESENTED TO OTHERS THAT WE WERE MARRIED. SINCE THE DATE OF MARRIAGE TO THE OTHER PARTY I HAVE NOT BEEN MARRIED TO ANY OTHER PERSON. THIS DECLARATION IS TRUE AND THE INFORMATION IN IT WHICH I HAVE GIVEN IS CORRECT.";
(6) spaces immediately below the printed declaration and oath for the parties' signatures; and
(7) a certificate of the county clerk that the parties made the declaration and oath and the place and date it was made.
(c) Repealed by Acts 1997, 75th Leg., ch. 1362, § 4, eff. Sept. 1, 1997.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1997, 75th Leg., ch. 1362, § 4, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 268, § 4.13, eff. Sept. 1, 2005.
§ 2.403. PROOF OF IDENTITY AND AGE; OFFENSE. (a) The county clerk shall require proof of the identity and age of each party to the declaration of informal marriage to be established by a certified copy of the party's birth certificate or by some certificate, license, or document issued by this state or another state, the United States, or a foreign government.
(b) A person commits an offense if the person knowingly provides false, fraudulent, or otherwise inaccurate proof of the person's identity or age under this section. An offense under this subsection is a Class A misdemeanor.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 268, § 4.14, eff. Sept. 1, 2005.
§ 2.404. RECORDING OF DECLARATION OF INFORMAL MARRIAGE. (a) The county clerk shall:
(1) determine that all necessary information is recorded on the declaration of informal marriage form and that all necessary documents are submitted to the clerk;
(2) administer the oath to each party to the declaration; (3) have each party sign the declaration in the clerk's presence; and (4) execute the clerk's certificate to the declaration. (b) The county clerk may not certify or record the declaration if: (1) either party fails to supply any information or provide any document required by this subchapter;
(2) either party is under 18 years of age; or (3) either party checks "false" in response to the statement of relationship to the other party.
(c) On execution of the declaration, the county clerk shall record the declaration and all documents submitted with the declaration or note a summary of them on the declaration form, deliver the original of the declaration to the parties, and send a copy to the bureau of vital statistics.
(d) A declaration recorded as provided in this section is prima facie evidence of the marriage of the parties.
(e) At the time the parties sign the declaration, the clerk shall distribute to each party printed materials about acquired immune deficiency syndrome (AIDS) and human immunodeficiency virus (HIV). The clerk shall note on the declaration that the distribution was made. The materials shall be prepared and provided to the clerk by the Texas Department of Health and shall be designed to inform the parties about:
(1) the incidence and mode of transmission of AIDS and HIV; (2) the local availability of medical procedures, including voluntary testing, designed to show or help show whether a person has AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS; and
(3) available and appropriate counseling services regarding AIDS and HIV infection.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1997, 75th Leg., ch. 1362, § 2, eff. Sept. 1, 1997.
§ 2.405. VIOLATION BY COUNTY CLERK; PENALTY. A county clerk or deputy county clerk who violates this subchapter commits an offense. An offense under this section is a misdemeanor punishable by a fine of not less than $200 and not more than $500.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
SUBCHAPTER F. RIGHTS AND DUTIES OF SPOUSES
§ 2.501. DUTY TO SUPPORT. (a) Each spouse has the duty to support the other spouse.
(b) A spouse who fails to discharge the duty of support is liable to any person who provides necessaries to the spouse to whom support is owed.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. § 4.001. DEFINITIONS. In this subchapter: (1) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.
(2) "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.002. FORMALITIES. A premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.003. CONTENT. (a) The parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) the modification or elimination of spousal support; (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.004. EFFECT OF MARRIAGE. A premarital agreement becomes effective on marriage.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.005. AMENDMENT OR REVOCATION. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.006. ENFORCEMENT. (a) A premarital agreement is not enforceable if the party against whom enforcement is requested proves that:
(1) the party did not sign the agreement voluntarily; or (2) the agreement was unconscionable when it was signed and, before signing the agreement, that party:
(A) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(B) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(C) did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) The remedies and defenses in this section are the exclusive remedies or defenses, including common law remedies or defenses.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.007. ENFORCEMENT: VOID MARRIAGE. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.008. LIMITATION OF ACTIONS. A statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.009. APPLICATION AND CONSTRUCTION. This subchapter shall be applied and construed to effect its general purpose to make uniform the law with respect to the subject of this subchapter among states enacting these provisions.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.010. SHORT TITLE. This subchapter may be cited as the Uniform Premarital Agreement Act.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
SUBCHAPTER B. MARITAL PROPERTY AGREEMENT
§ 4.101. DEFINITION. In this subchapter, "property" has the meaning assigned by Section 4.001.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.102. PARTITION OR EXCHANGE OF COMMUNITY PROPERTY. At any time, the spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as the spouses may desire. Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spouse's separate property. The partition or exchange of property may also provide that future earnings and income arising from the transferred property shall be the separate property of the owning spouse.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2003, 78th Leg., ch. 230, § 2, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 477, § 1, eff. Sept. 1, 2005.
§ 4.103. AGREEMENT BETWEEN SPOUSES CONCERNING INCOME OR PROPERTY FROM SEPARATE PROPERTY. At any time, the spouses may agree that the income or property arising from the separate property that is then owned by one of them, or that may thereafter be acquired, shall be the separate property of the owner.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.104. FORMALITIES. A partition or exchange agreement under Section 4.102 or an agreement under Section 4.103 must be in writing and signed by both parties. Either agreement is enforceable without consideration.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2005, 79th Leg., ch. 477, § 2, eff. Sept. 1, 2005.
§ 4.105. ENFORCEMENT. (a) A partition or exchange agreement is not enforceable if the party against whom enforcement is requested proves that:
(1) the party did not sign the agreement voluntarily; or (2) the agreement was unconscionable when it was signed and, before execution of the agreement, that party:
(A) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(B) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(C) did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a partition or exchange agreement shall be decided by the court as a matter of law.
(c) The remedies and defenses in this section are the exclusive remedies or defenses, including common law remedies or defenses.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 4.106. RIGHTS OF CREDITORS AND RECORDATION UNDER PARTITION OR EXCHANGE AGREEMENT. (a) A provision of a partition or exchange agreement made under this subchapter is void with respect to the rights of a preexisting creditor whose rights are intended to be defrauded by it.
(b) A partition or exchange agreement made under this subchapter may be recorded in the deed records of the county in which a party resides and in the county in which the real property affected is located. An agreement made under this subchapter is constructive notice to a good faith purchaser for value or a creditor without actual notice only if the instrument is acknowledged and recorded in the county in which the real property is located.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
SUBCHAPTER C. AGREEMENT TO CONVERT SEPARATE PROPERTY TO COMMUNITY PROPERTY
§ 4.201. DEFINITION. In this subchapter, "property" has the meaning assigned by Section 4.001.
Added by Acts 1999, 76th Leg., ch. 692, § 3, eff. Jan. 1, 2000.
§ 4.202. AGREEMENT TO CONVERT TO COMMUNITY PROPERTY. At any time, spouses may agree that all or part of the separate property owned by either or both spouses is converted to community property.
Added by Acts 1999, 76th Leg., ch. 692, § 3, eff. Jan. 1, 2000.
§ 4.203. FORMALITIES OF AGREEMENT. (a) An agreement to convert separate property to community property:
(1) must be in writing and: (A) be signed by the spouses; (B) identify the property being converted; and (C) specify that the property is being converted to the spouses' community property; and
(2) is enforceable without consideration. (b) The mere transfer of a spouse's separate property to the name of the other spouse or to the name of both spouses is not sufficient to convert the property to community property under this subchapter.
Added by Acts 1999, 76th Leg., ch. 692, § 3, eff. Jan. 1, 2000.
§ 4.204. MANAGEMENT OF CONVERTED PROPERTY. Except as specified in the agreement to convert the property and as provided by Subchapter B, Chapter 3, and other law, property converted to community property under this subchapter is subject to:
(1) the sole management, control, and disposition of the spouse in whose name the property is held;
(2) the sole management, control, and disposition of the spouse who transferred the property if the property is not subject to evidence of ownership;
(3) the joint management, control, and disposition of the spouses if the property is held in the name of both spouses; or
(4) the joint management, control, and disposition of the spouses if the property is not subject to evidence of ownership and was owned by both spouses before the property was converted to community property.
Added by Acts 1999, 76th Leg., ch. 692, § 3, eff. Jan. 1, 2000.
§ 4.205. ENFORCEMENT. (a) An agreement to convert property to community property under this subchapter is not enforceable if the spouse against whom enforcement is sought proves that the spouse did not:
(1) execute the agreement voluntarily; or (2) receive a fair and reasonable disclosure of the legal effect of converting the property to community property.
(b) An agreement that contains the following statement, or substantially similar words, prominently displayed in bold-faced type, capital letters, or underlined, is rebuttably presumed to provide a fair and reasonable disclosure of the legal effect of converting property to community property:
"THIS INSTRUMENT CHANGES SEPARATE PROPERTY TO COMMUNITY PROPERTY. THIS MAY HAVE ADVERSE CONSEQUENCES DURING MARRIAGE AND ON TERMINATION OF THE MARRIAGE BY DEATH OR DIVORCE. FOR EXAMPLE:
"EXPOSURE TO CREDITORS. IF YOU SIGN THIS AGREEMENT, ALL OR PART OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY PROPERTY MAY BECOME SUBJECT TO THE LIABILITIES OF YOUR SPOUSE. IF YOU DO NOT SIGN THIS AGREEMENT, YOUR SEPARATE PROPERTY IS GENERALLY NOT SUBJECT TO THE LIABILITIES OF YOUR SPOUSE UNLESS YOU ARE PERSONALLY LIABLE UNDER ANOTHER RULE OF LAW.
"LOSS OF MANAGEMENT RIGHTS. IF YOU SIGN THIS AGREEMENT, ALL OR PART OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY PROPERTY MAY BECOME SUBJECT TO EITHER THE JOINT MANAGEMENT, CONTROL, AND DISPOSITION OF YOU AND YOUR SPOUSE OR THE SOLE MANAGEMENT, CONTROL, AND DISPOSITION OF YOUR SPOUSE ALONE. IN THAT EVENT, YOU WILL LOSE YOUR MANAGEMENT RIGHTS OVER THE PROPERTY. IF YOU DO NOT SIGN THIS AGREEMENT, YOU WILL GENERALLY RETAIN THOSE RIGHTS."
"LOSS OF PROPERTY OWNERSHIP. IF YOU SIGN THIS AGREEMENT AND YOUR MARRIAGE IS SUBSEQUENTLY TERMINATED BY THE DEATH OF EITHER SPOUSE OR BY DIVORCE, ALL OR PART OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY PROPERTY MAY BECOME THE SOLE PROPERTY OF YOUR SPOUSE OR YOUR SPOUSE'S HEIRS. IF YOU DO NOT SIGN THIS AGREEMENT, YOU GENERALLY CANNOT BE DEPRIVED OF OWNERSHIP OF YOUR SEPARATE PROPERTY ON TERMINATION OF YOUR MARRIAGE, WHETHER BY DEATH OR DIVORCE."
(c) If a proceeding regarding enforcement of an agreement under this subchapter occurs after the death of the spouse against whom enforcement is sought, the proof required by Subsection (a) may be made by an heir of the spouse or the personal representative of the estate of that spouse.
Added by Acts 1999, 76th Leg., ch. 692, § 3, eff. Jan. 1, 2000. Amended by Acts 2003, 78th Leg., ch. 230, § 3, eff. Sept. 1, 2003.
§ 4.206. RIGHTS OF CREDITORS; RECORDING. (a) A conversion of separate property to community property does not affect the rights of a preexisting creditor of the spouse whose separate property is being converted.
(b) A conversion of separate property to community property may be recorded in the deed records of the county in which a spouse resides and of the county in which any real property is located.
(c) A conversion of real property from separate property to community property is constructive notice to a good faith purchaser for value or a creditor without actual notice only if the agreement to convert the property is acknowledged and recorded in the deed records of the county in which the real property is located.
Added by Acts 1999, 76th Leg., ch. 692, § 3, eff. Jan. 1, 2000. § 5.001. SALE, CONVEYANCE, OR ENCUMBRANCE OF HOMESTEAD. Whether the homestead is the separate property of either spouse or community property, neither spouse may sell, convey, or encumber the homestead without the joinder of the other spouse except as provided in this chapter or by other rules of law.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 5.002. SALE OF SEPARATE HOMESTEAD AFTER SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the homestead is the separate property of a spouse and the other spouse has been judicially declared incapacitated by a court exercising original jurisdiction over guardianship and other matters under Chapter XIII, Texas Probate Code, the owner may sell, convey, or encumber the homestead without the joinder of the other spouse.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2001, 77th Leg., ch. 217, § 25, eff. Sept. 1, 2001.
§ 5.003. SALE OF COMMUNITY HOMESTEAD AFTER SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the homestead is the community property of the spouses and one spouse has been judicially declared incapacitated by a court exercising original jurisdiction over guardianship and other matters under Chapter XIII, Texas Probate Code, the competent spouse may sell, convey, or encumber the homestead without the joinder of the other spouse.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Renumbered from V.T.C.A., Family Code § 5.107 and amended by Acts 2001, 77th Leg., ch. 217, § 29, eff. Sept. 1, 2001.
SUBCHAPTER B. SALE OF HOMESTEAD UNDER UNUSUAL CIRCUMSTANCES
§ 5.101. SALE OF SEPARATE HOMESTEAD UNDER UNUSUAL CIRCUMSTANCES. If the homestead is the separate property of a spouse, that spouse may file a sworn petition that gives a description of the property, states the facts that make it desirable for the spouse to sell, convey, or encumber the homestead without the joinder of the other spouse, and alleges that the other spouse:
(1) has disappeared and that the location of the spouse remains unknown to the petitioning spouse;
(2) has permanently abandoned the homestead and the petitioning spouse; (3) has permanently abandoned the homestead and the spouses are permanently separated; or
(4) has been reported by an executive department of the United States to be a prisoner of war or missing on public service of the United States.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2001, 77th Leg., ch. 217, § 26, eff. Sept. 1, 2001.
§ 5.102. SALE OF COMMUNITY HOMESTEAD UNDER UNUSUAL CIRCUMSTANCES. If the homestead is the community property of the spouses, one spouse may file a sworn petition that gives a description of the property, states the facts that make it desirable for the petitioning spouse to sell, convey, or encumber the homestead without the joinder of the other spouse, and alleges that the other spouse:
(1) has disappeared and that the location of the spouse remains unknown to the petitioning spouse;
(2) has permanently abandoned the homestead and the petitioning spouse; (3) has permanently abandoned the homestead and the spouses are permanently separated; or
(4) has been reported by an executive department of the United States to be a prisoner of war or missing on public service of the United States.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2001, 77th Leg., ch. 217, § 27, eff. Sept. 1, 2001.
§ 5.103. TIME FOR FILING PETITION. The petitioning spouse may file the petition in a court of the county in which any portion of the property is located not earlier than the 60th day after the date of the occurrence of an event described by Sections 5.101(1)-(3) and 5.102(1)-(3) or not less than six months after the date the other spouse has been reported to be a prisoner of war or missing on public service.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2001, 77th Leg., ch. 217, § 28, eff. Sept. 1, 2001.
§ 5.104. APPOINTMENT OF ATTORNEY. (a) Except as provided by Subsection (b), the court may appoint an attorney in a suit filed under this subchapter for the respondent.
(b) The court shall appoint an attorney in a suit filed under this subchapter for a respondent reported to be a prisoner of war or missing on public service.
(c) The court shall allow a reasonable fee for the appointed attorney's services as a part of the costs of the suit.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 5.105. CITATION; NOTICE OF HEARING. Citation and notice of hearing for a suit filed as provided by this subchapter shall be issued and served in the manner provided in Subchapter D, Chapter 3.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 5.106. COURT ORDER. (a) After notice and hearing, the court shall render an order the court deems just and equitable with respect to the sale, conveyance, or encumbrance of a separate property homestead.
(b) After hearing the evidence, the court, on terms the court deems just and equitable, shall render an order describing or defining the community property at issue that will be subject to the management, control, and disposition of each spouse during marriage.
(c) The court may: (1) impose any conditions and restrictions the court deems necessary to protect the rights of the respondent;
(2) require a bond conditioned on the faithful administration of the property; and
(3) require payment to the registry of the court of all or a portion of the proceeds of the sale of the property to be disbursed in accordance with the court's further directions.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 5.108. REMEDIES AND POWERS CUMULATIVE. The remedies and the powers of a spouse provided by this subchapter are cumulative of the other rights, powers, and remedies afforded the spouses by law.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. § 7.001. GENERAL RULE OF PROPERTY DIVISION. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 7.002. DIVISION AND DISPOSITION OF CERTAIN PROPERTY UNDER SPECIAL CIRCUMSTANCES. (a) In addition to the division of the estate of the parties required by Section 7.001, in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage:
(1) property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or
(2) property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.
(b) In a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse:
(1) property that was acquired by the spouse while domiciled in another state and that would have been the spouse's separate property if the spouse had been domiciled in this state at the time of acquisition; or
(2) property that was acquired by the spouse in exchange for real or personal property and that would have been the spouse's separate property if the spouse had been domiciled in this state at the time of acquisition.
(c) In a decree of divorce or annulment, the court shall confirm the following as the separate property of a spouse if partitioned or exchanged by written agreement of the spouses:
(1) income and earnings from the spouses' property, wages, salaries, and other forms of compensation received on or after January 1 of the year in which the suit for dissolution of marriage was filed; or
(2) income and earnings from the spouses' property, wages, salaries, and other forms of compensation received in another year during which the spouses were married for any part of the year.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1999, 76th Leg., ch. 692, § 4, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 838, § 4, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 230, § 4, eff. Sept. 1, 2003.
§ 7.003. DISPOSITION OF RETIREMENT AND EMPLOYMENT BENEFITS AND OTHER PLANS. In a decree of divorce or annulment, the court shall determine the rights of both spouses in a pension, retirement plan, annuity, individual retirement account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant, regardless of whether the person is self-employed, in the nature of compensation or savings.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 7.004. DISPOSITION OF RIGHTS IN INSURANCE. In a decree of divorce or annulment, the court shall specifically divide or award the rights of each spouse in an insurance policy.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 7.005. INSURANCE COVERAGE NOT SPECIFICALLY AWARDED. (a) If in a decree of divorce or annulment the court does not specifically award all of the rights of the spouses in an insurance policy other than life insurance in effect at the time the decree is rendered, the policy remains in effect until the policy expires according to the policy's own terms.
(b) The proceeds of a valid claim under the policy are payable as follows: (1) if the interest in the property insured was awarded solely to one former spouse by the decree, to that former spouse;
(2) if an interest in the property insured was awarded to each former spouse, to those former spouses in proportion to the interests awarded; or
(3) if the insurance coverage is directly related to the person of one of the former spouses, to that former spouse.
(c) The failure of either former spouse to change the endorsement on the policy to reflect the distribution of proceeds established by this section does not relieve the insurer of liability to pay the proceeds or any other obligation on the policy.
(d) This section does not affect the right of a former spouse to assert an ownership interest in an undivided life insurance policy, as provided by Subchapter D, Chapter 9.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 7.006. AGREEMENT INCIDENT TO DIVORCE OR ANNULMENT. (a) To promote amicable settlement of disputes in a suit for divorce or annulment, the spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. The agreement may be revised or repudiated before rendition of the divorce or annulment unless the agreement is binding under another rule of law.
(b) If the court finds that the terms of the written agreement in a divorce or annulment are just and right, those terms are binding on the court. If the court approves the agreement, the court may set forth the agreement in full or incorporate the agreement by reference in the final decree.
(c) If the court finds that the terms of the written agreement in a divorce or annulment are not just and right, the court may request the spouses to submit a revised agreement or may set the case for a contested hearing.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 7.007. DISPOSITION OF CLAIM FOR ECONOMIC CONTRIBUTION OR CLAIM FOR REIMBURSEMENT. (a) In a decree of divorce or annulment, the court shall determine the rights of both spouses in a claim for economic contribution as provided by Subchapter E, Chapter 3, and in a manner that the court considers just and right, having due regard for the rights of each party and any children of the marriage, shall:
(1) order a division of a claim for economic contribution of the community marital estate to the separate marital estate of one of the spouses;
(2) order that a claim for an economic contribution by one separate marital estate of a spouse to the community marital estate of the spouses be awarded to the owner of the contributing separate marital estate; and
(3) order that a claim for economic contribution of one separate marital estate in the separate marital estate of the other spouse be awarded to the owner of the contributing marital estate.
(b) In a decree of divorce or annulment, the court shall determine the rights of both spouses in a claim for reimbursement as provided by Subchapter E, Chapter 3, and shall apply equitable principles to:
(1) determine whether to recognize the claim after taking into account all the relative circumstances of the spouses; and
(2) order a division of the claim for reimbursement, if appropriate, in a manner that the court considers just and right, having due regard for the rights of each party and any children of the marriage.
Added by Acts 2001, 77th Leg., ch. 838, § 5, eff. Sept. 1, 2001.
§ 7.008. CONSIDERATION OF TAXES. In ordering the division of the estate of the parties to a suit for dissolution of a marriage, the court may consider:
(1) whether a specific asset will be subject to taxation; and (2) if the asset will be subject to taxation, when the tax will be required to be paid.
Added by Acts 2005, 79th Leg., ch. 168, § 1, eff. Sept. 1, 2005. § 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.
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. Renumbered from § 8.002 and amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 914, § 1, eff. Sept. 1, 2005.
§ 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.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 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.
SUBCHAPTER C. INCOME WITHHOLDING
§ 8.101. INCOME WITHHOLDING; GENERAL RULE. (a) In a proceeding in which periodic payments of spousal maintenance are ordered, modified, or enforced, the court may order that income be withheld from the disposable earnings of the obligor as provided by this chapter.
(b) This subchapter does not apply to contractual alimony or spousal maintenance, regardless of whether the alimony or maintenance is taxable, unless:
(1) the contract specifically permits income withholding; or (2) the alimony or maintenance payments are not timely made under the terms of the contract.
(c) An order or writ of withholding for spousal maintenance may be combined with an order or writ of withholding for child support only if the obligee has been appointed managing conservator of the child for whom the child support is owed and is the conservator with whom the child primarily resides.
(d) An order or writ of withholding that combines withholding for spousal maintenance and child support must:
(1) require that the withheld amounts be paid to the appropriate place of payment under Section 154.004;
(2) be in the form prescribed by the Title IV-D agency under Section 158.106;
(3) clearly indicate the amounts withheld that are to be applied to current spousal maintenance and to any maintenance arrearages; and
(4) subject to the maximum withholding allowed under Section 8.106, order that withheld income be applied in the following order of priority:
(A) current child support; (B) current spousal maintenance; (C) child support arrearages; and (D) spousal maintenance arrearages. (e) Garnishment for the purposes of spousal maintenance does not apply to unemployment insurance benefit payments.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.102. WITHHOLDING FOR ARREARAGES IN ADDITION TO CURRENT SPOUSAL MAINTENANCE. (a) The court may order that, in addition to income withheld for current spousal maintenance, income be withheld from the disposable earnings of the obligor to be applied toward the liquidation of any arrearages.
(b) The additional amount withheld to be applied toward arrearages must be whichever of the following amounts will discharge the arrearages in the least amount of time:
(1) an amount sufficient to discharge the arrearages in not more than two years; or
(2) 20 percent of the amount withheld for current maintenance.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.103. WITHHOLDING FOR ARREARAGES WHEN CURRENT MAINTENANCE IS NOT DUE. A court may order income withholding to be applied toward arrearages in an amount sufficient to discharge those arrearages in not more than two years if current spousal maintenance is no longer owed.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.104. WITHHOLDING TO SATISFY JUDGMENT FOR ARREARAGES. The court, in rendering a cumulative judgment for arrearages, may order that a reasonable amount of income be withheld from the disposable earnings of the obligor to be applied toward the satisfaction of the judgment.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.105. PRIORITY OF WITHHOLDING. An order or writ of withholding under this chapter has priority over any garnishment, attachment, execution, or other order affecting disposable earnings, except for an order or writ of withholding for child support under Chapter 158.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.106. MAXIMUM AMOUNT WITHHELD FROM EARNINGS. An order or writ of withholding must direct that an obligor's employer withhold from the obligor's disposable earnings the lesser of:
(1) the amount specified in the order or writ; or (2) an amount that, when added to the amount of income being withheld by the employer for child support, is equal to 50 percent of the obligor's disposable earnings.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.107. ORDER OR WRIT BINDING ON EMPLOYER DOING BUSINESS IN THIS STATE. An order or writ of withholding issued under this chapter and delivered to an employer doing business in this state is binding on the employer without regard to whether the obligor resides or works outside this state.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.108. VOLUNTARY WRIT OF WITHHOLDING BY OBLIGOR. (a) An obligor may file with the clerk of the court a notarized or acknowledged request signed by the obligor and the obligee for the issuance and delivery to the obligor's employer of a writ of withholding. The obligor may file the request under this section regardless of whether a writ or order has been served on any party or whether the obligor owes arrearages.
(b) On receipt of a request under this section, the clerk shall issue and deliver a writ of withholding in the manner provided by this subchapter.
(c) An employer who receives a writ of withholding issued under this section may request a hearing in the same manner and according to the same terms provided by Section 8.205.
(d) An obligor whose employer receives a writ of withholding issued under this section may request a hearing in the manner provided by Section 8.258.
(e) An obligee may contest a writ of income withholding issued under this section by requesting, not later than the 180th day after the date on which the obligee discovers that the writ was issued, a hearing to be conducted in the manner provided by Section 8.258 for a hearing on a motion to stay.
(f) A writ of withholding under this section may not reduce the total amount of spousal maintenance, including arrearages, owed by the obligor.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
SUBCHAPTER D. PROCEDURE
§ 8.151. TIME LIMIT. The court may issue an order or writ for withholding under this chapter at any time before all spousal maintenance and arrearages are paid.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.152. CONTENTS OF ORDER OF WITHHOLDING. (a) An order of withholding must state:
(1) the style, cause number, and court having jurisdiction to enforce the order;
(2) the name, address, and, if available, the social security number of the obligor;
(3) the amount and duration of the spousal maintenance payments, including the amount and duration of withholding for arrearages, if any; and
(4) the name, address, and, if available, the social security number of the obligee.
(b) The order for withholding must require the obligor to notify the court promptly of any material change affecting the order, including a change of employer.
(c) On request by an obligee, the court may exclude from an order of withholding the obligee's address and social security number if the obligee or a member of the obligee's family or household is a victim of family violence and is the subject of a protective order to which the obligor is also subject. On granting a request under this subsection, the court shall order the clerk to:
(1) strike the address and social security number required by Subsection (a) from the order or writ of withholding; and
(2) maintain a confidential record of the obligee's address and social security number to be used only by the court.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.153. REQUEST FOR ISSUANCE OF ORDER OR WRIT OF WITHHOLDING. An obligor or obligee may file with the clerk of the court a request for issuance of an order or writ of withholding.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.154. ISSUANCE AND DELIVERY OF ORDER OR WRIT OF WITHHOLDING. (a) On receipt of a request for issuance of an order or writ of withholding, the clerk of the court shall deliver a certified copy of the order or writ to the obligor's current employer or to any subsequent employer of the obligor. The clerk shall attach a copy of Subchapter E to the order or writ.
(b) Not later than the fourth working day after the date the order is signed or the request is filed, whichever is later, the clerk shall issue and deliver the certified copy of the order or writ by:
(1) certified or registered mail, return receipt requested, to the employer; or
(2) service of citation to: (A) the person authorized to receive service of process for the employer in civil cases generally; or
(B) a person designated by the employer by written notice to the clerk to receive orders or notices of income withholding.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
SUBCHAPTER E. RIGHTS AND DUTIES OF EMPLOYER
§ 8.201. ORDER OR WRIT BINDING ON EMPLOYER. (a) An employer required to withhold income from earnings under this chapter is not entitled to notice of the proceedings before the order of withholding is rendered or writ of withholding is issued.
(b) An order or writ of withholding is binding on an employer regardless of whether the employer is specifically named in the order or writ.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.202. EFFECTIVE DATE AND DURATION OF INCOME WITHHOLDING. An employer shall begin to withhold income in accordance with an order or writ of withholding not later than the first pay period after the date the order or writ was delivered to the employer. The employer shall continue to withhold income as required by the order or writ as long as the obligor is employed by the employer.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.203. REMITTING WITHHELD PAYMENTS. (a) The employer shall remit to the person or office named in the order or writ of withholding the amount of income withheld from an obligor on each pay date. The remittance must include the date on which the income withholding occurred.
(b) The employer shall include with each remittance: (1) the cause number of the suit under which income withholding is required;
(2) the payor's name; and (3) the payee's name, unless the remittance is made by electronic funds transfer.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.204. EMPLOYER MAY DEDUCT FEE FROM EARNINGS. An employer may deduct an administrative fee of not more than $5 each month from the obligor's disposable earnings in addition to the amount withheld as spousal maintenance.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.205. HEARING REQUESTED BY EMPLOYER. (a) Not later than the 20th day after the date an order or writ of withholding is delivered to an employer, the employer may file with the court a motion for a hearing on the applicability of the order or writ to the employer.
(b) The hearing under this section must be held on or before the 15th day after the date the motion is made.
(c) An order or writ of withholding is binding and the employer shall continue to withhold income and remit the amount withheld pending further order of the court.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.206. LIABILITY AND OBLIGATION OF EMPLOYER FOR PAYMENTS. (a) An employer who complies with an order or writ of withholding under this chapter is not liable to the obligor for the amount of income withheld and remitted as required by the order or writ.
(b) An employer who receives, but does not comply with, an order or writ of withholding is liable to:
(1) the obligee for any amount of spousal maintenance not paid in compliance with the order or writ;
(2) the obligor for any amount withheld from the obligor's disposable earnings, but not remitted to the obligee; and
(3) the obligee or obligor for reasonable attorney's fees and court costs incurred in recovering an amount described by Subdivision (1) or (2).
(c) An employer shall comply with an order of withholding for spousal maintenance or alimony issued in another state that appears regular on its face in the same manner as an order issued by a tribunal of this state. The employer shall notify the employee of the order and comply with the order in the manner provided by Subchapter F, Chapter 159, with respect to an order of withholding for child support issued by another state. The employer may contest the order of withholding in the manner provided by that subchapter with respect to an order of withholding for child support issued by another state.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.207. EMPLOYER RECEIVING MULTIPLE ORDERS OR WRITS. (a) An employer who receives more than one order or writ of withholding to withhold income from the same obligor shall withhold the combined amounts due under each order or writ unless the combined amounts due exceed the maximum total amount of allowed income withholding under Section 8.106.
(b) If the combined amounts to be withheld under multiple orders or writs for the same obligor exceed the maximum total amount of allowed income withholding under Section 8.106, the employer shall pay, until that maximum is reached, in the following order of priority:
(1) an equal amount toward current child support owed by the obligor in each order or writ until the employer has complied fully with each current child support obligation;
(2) an equal amount toward current maintenance owed by the obligor in each order or writ until the employer has complied fully with each current maintenance obligation;
(3) an equal amount toward child support arrearages owed by the obligor in each order or writ until the employer has complied fully with each order or writ for child support arrearages; and
(4) an equal amount toward maintenance arrearages owed by the obligor in each order or writ until the employer has complied fully with each order or writ for spousal maintenance arrearages.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.208. EMPLOYER'S LIABILITY FOR DISCRIMINATORY HIRING OR DISCHARGE. (a) An employer may not use an order or writ of withholding as grounds in whole or part for the termination of employment of, or for any other disciplinary action against, an employee.
(b) An employer may not refuse to hire an employee because of an order or writ of withholding.
(c) An employer who intentionally discharges an employee in violation of this section is liable to that employee for current wages, other employment benefits, and reasonable attorney's fees and court costs incurred in enforcing the employee's rights.
(d) In addition to liability imposed under Subsection (c), the court shall order with respect to an employee whose employment was suspended or terminated in violation of this section appropriate injunctive relief, including reinstatement of:
(1) the employee's position with the employer; and (2) fringe benefits or seniority lost as a result of the suspension or termination.
(e) An employee may bring an action to enforce the employee's rights under this section.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.209. PENALTY FOR NONCOMPLIANCE. (a) In addition to the civil remedies provided by this subchapter or any other remedy provided by law, an employer who knowingly violates this chapter by failing to withhold income for spousal maintenance or to remit withheld income in accordance with an order or writ of withholding issued under this chapter commits an offense.
(b) An offense under this section is punishable by a fine not to exceed $200 for each violation.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.210. NOTICE OF TERMINATION OF EMPLOYMENT AND OF NEW EMPLOYMENT. (a) An obligor who terminates employment with an employer who has been withholding income and the obligor's employer shall each notify the court and the obligee of:
(1) the termination of employment not later than the seventh day after the date of termination;
(2) the obligor's last known address; and (3) the name and address of the obligor's new employer, if known. (b) The obligor shall inform a subsequent employer of the order or writ of withholding after obtaining employment.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
SUBCHAPTER F. WRIT OF WITHHOLDING ISSUED BY CLERK
§ 8.251. NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING; FILING. (a) An obligor or obligee may file a notice of application for a writ of withholding if income withholding was not ordered at the time spousal maintenance was ordered.
(b) The obligor or obligee may file the notice of application for a writ of withholding in the court that ordered the spousal maintenance under Subchapter B.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.252. CONTENTS OF NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING. The notice of application for a writ of withholding must be verified and:
(1) state the amount of monthly maintenance due, including the amount of arrearages or anticipated arrearages, and the amount of disposable earnings to be withheld under a writ of withholding;
(2) state that the withholding applies to each current or subsequent employer or period of employment;
(3) state that the obligor's employer will be notified to begin the withholding if the obligor does not contest the withholding on or before the 10th day after the date the obligor receives the notice;
(4) describe the procedures for contesting the issuance and delivery of a writ of withholding;
(5) state that the obligor will be provided an opportunity for a hearing not later than the 30th day after the date of receipt of the notice of contest if the obligor contests the withholding;
(6) state that the sole ground for successfully contesting the issuance of a writ of withholding is a dispute concerning the identity of the obligor or the existence or amount of the arrearages;
(7) describe the actions that may be taken if the obligor contests the notice of application for a writ of withholding, including the procedures for suspending issuance of a writ of withholding; and
(8) include with the notice a suggested form for the motion to stay issuance and delivery of the writ of withholding that the obligor may file with the clerk of the appropriate court.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.253. INTERSTATE REQUEST FOR WITHHOLDING. (a) The registration of a foreign order that provides for spousal maintenance or alimony as provided in Chapter 159 is sufficient for filing a notice of application for a writ of withholding.
(b) The notice must be filed with the clerk of the court having venue as provided in Chapter 159.
(c) The notice of application for a writ of withholding may be delivered to the obligor at the same time that an order is filed for registration under Chapter 159.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.254. ADDITIONAL ARREARAGES. If the notice of application for a writ of withholding states that the obligor has failed to pay more than one spousal maintenance payment according to the terms of the spousal maintenance order, the writ of withholding may include withholding for arrearages that accrue between the filing of the notice and the date of the hearing or the issuance of the writ.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.255. DELIVERY OF NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING; TIME OF DELIVERY. (a) The party who files a notice of application for a writ of withholding shall deliver the notice to the obligor by:
(1) first-class or certified mail, return receipt requested, addressed to the obligor's last known address or place of employment; or
(2) service of citation as in civil cases generally. (b) If the notice is delivered by mail, the party who filed the notice shall file with the court a certificate stating the name, address, and date the party mailed the notice.
(c) The notice is considered to have been received by the obligor: (1) on the date of receipt, if the notice was mailed by certified mail; (2) on the 10th day after the date the notice was mailed, if the notice was mailed by first-class mail; or
(3) on the date of service, if the notice was delivered by service of citation.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.256. MOTION TO STAY ISSUANCE OF WRIT OF WITHHOLDING. (a) The obligor may stay issuance of a writ of withholding by filing a motion to stay with the clerk of the court not later than the 10th day after the date the notice of application for a writ of withholding was received.
(b) The grounds for filing a motion to stay issuance are limited to a dispute concerning the identity of the obligor or the existence or the amount of the arrearages.
(c) The obligor shall verify that the statements of fact in the motion to stay issuance of the writ are correct.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.257. EFFECT OF FILING MOTION TO STAY. If the obligor files a motion to stay as provided by Section 8.256, the clerk of the court may not deliver the writ of withholding to the obligor's employer before a hearing is held.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.258. HEARING ON MOTION TO STAY. (a) If the obligor files a motion to stay as provided by Section 8.256, the court shall set a hearing on the motion and the clerk of the court shall notify the obligor and obligee of the date, time, and place of the hearing.
(b) The court shall hold a hearing on the motion to stay not later than the 30th day after the date the motion was filed unless the obligor and obligee agree and waive the right to have the motion heard within 30 days.
(c) After the hearing, the court shall: (1) render an order for income withholding that includes a determination of any amount of arrearages; or
(2) grant the motion to stay.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.259. SPECIAL EXCEPTIONS. (a) A defect in a notice of application for a writ of withholding is waived unless the respondent specially excepts in writing and cites with particularity the alleged defect, obscurity, or other ambiguity in the notice.
(b) A special exception under this section must be heard by the court before hearing the motion to stay issuance.
(c) If the court sustains an exception, the court shall provide the party filing the notice an opportunity to refile and shall continue the hearing to a specified date without requiring additional service.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.260. WRIT OF WITHHOLDING AFTER ARREARAGES ARE PAID. (a) The court may not refuse to order withholding solely on the basis that the obligor paid the arrearages after the obligor received the notice of application for a writ of withholding.
(b) The court shall order that a reasonable amount of income be withheld and applied toward the liquidation of arrearages, even though a judgment confirming arrearages was rendered against the obligor.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.261. REQUEST FOR ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING. (a) If a notice of application for a writ of withholding is delivered and the obligor does not file a motion to stay within the time provided by Section 8.256, the party who filed the notice shall file with the clerk of the court a request for issuance of the writ of withholding stating the amount of current spousal maintenance, the amount of arrearages, and the amount to be withheld from the obligor's income.
(b) The party who filed the notice may not file a request for issuance before the 11th day after the date the obligor received the notice of application for a writ of withholding.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.262. ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING. The clerk of the court shall, on the filing of a request for issuance of a writ of withholding, issue and deliver the writ as provided by Subchapter D not later than the second working day after the date the request is filed. The clerk shall charge a fee in the amount of $15 for issuing the writ of withholding.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.263. CONTENTS OF WRIT OF WITHHOLDING. A writ of withholding must direct that an obligor's employer or a subsequent employer withhold from the obligor's disposable earnings an amount for current spousal maintenance and arrearages consistent with this chapter.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.264. EXTENSION OF REPAYMENT SCHEDULE BY PARTY; UNREASONABLE HARDSHIP. A party who files a notice of application for a writ of withholding and who determines that the schedule for repaying arrearages would cause unreasonable hardship to the obligor or the obligor's family may extend the payment period in the writ.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.265. REMITTANCE OF AMOUNT TO BE WITHHELD. The obligor's employer shall remit the amount withheld to the person or office named in the writ on each pay date and shall include with the remittance the date on which the withholding occurred.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.266. FAILURE TO RECEIVE NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING. (a) Not later than the 30th day after the date of the first pay period after the date the obligor's employer receives a writ of withholding, the obligor may file an affidavit with the court stating that:
(1) the obligor did not timely file a motion to stay because the obligor did not receive the notice of application for a writ of withholding; and
(2) grounds exist for a motion to stay. (b) The obligor may: (1) file with the affidavit a motion to withdraw the writ of withholding; and
(2) request a hearing on the applicability of the writ. (c) Income withholding may not be interrupted until after the hearing at which the court renders an order denying or modifying withholding.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.267. ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING TO SUBSEQUENT EMPLOYER. (a) After the clerk of the court issues a writ of withholding, a party authorized to file a notice of application for a writ of withholding under this subchapter may deliver a copy of the writ to a subsequent employer of the obligor by certified mail.
(b) Except as provided by an order under Section 8.152, the writ of withholding must include the name, address, and signature of the party and clearly indicate that the writ is being issued to a subsequent employer.
(c) The party shall file: (1) a copy of the writ of withholding with the clerk not later than the third working day after the date of delivery of the writ to the subsequent employer; and
(2) the postal return receipt from the delivery to the subsequent employer not later than the third working day after the date the party receives the receipt.
(d) The party shall pay the clerk a fee in the amount of $15 for filing the copy of the writ.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
SUBCHAPTER G. MODIFICATION, REDUCTION, OR TERMINATION OF WITHHOLDING
§ 8.301. AGREEMENT BY PARTIES REGARDING AMOUNT OR DURATION OF WITHHOLDING. (a) An obligor and obligee may agree to reduce or terminate income withholding for spousal maintenance on the occurrence of any contingency stated in the order.
(b) The obligor and obligee may file a notarized or acknowledged request with the clerk of the court under Section 8.108 for a revised writ of withholding or notice of termination of withholding.
(c) The clerk shall issue and deliver to the obligor's employer a writ of withholding that reflects the agreed revision or a notice of termination of withholding.
(d) An agreement by the parties under this section does not modify the terms of an order for spousal maintenance.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.302. MODIFICATIONS TO OR TERMINATION OF WITHHOLDING IN VOLUNTARY WITHHOLDING CASES. (a) If an obligor initiates voluntary withholding under Section 8.108, the obligee may file with the clerk of the court a notarized request signed by the obligor and the obligee for the issuance and delivery to the obligor of:
(1) a modified writ of withholding that reduces the amount of withholding; or
(2) a notice of termination of withholding. (b) On receipt of a request under this section, the clerk shall issue and deliver a modified writ of withholding or notice of termination in the manner provided by Section 8.301.
(c) The clerk may charge a fee in the amount of $15 for issuing and delivering the modified writ of withholding or notice of termination.
(d) An obligee may contest a modified writ of withholding or notice of termination issued under this section by requesting a hearing in the manner provided by Section 8.258 not later than the 180th day after the date the obligee discovers that the writ or notice was issued.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.303. TERMINATION OF WITHHOLDING IN MANDATORY WITHHOLDING CASES. (a) An obligor for whom withholding for maintenance owed or withholding for maintenance and child support owed is mandatory may file a motion to terminate withholding. On a showing by the obligor that the obligor has complied fully with the terms of the maintenance or child support order, as applicable, the court shall render an order for the issuance and delivery to the obligor of a notice of termination of withholding.
(b) The clerk shall issue and deliver the notice of termination ordered under this section to the obligor.
(c) The clerk may charge a fee in the amount of $15 for issuing and delivering the notice.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.304. DELIVERY OF ORDER OF REDUCTION OR TERMINATION OF WITHHOLDING. Any person may deliver to the obligor's employer a certified copy of an order that reduces the amount of spousal maintenance to be withheld or terminates the withholding.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.
§ 8.305. LIABILITY OF EMPLOYERS. The provisions of this chapter regarding the liability of employers for withholding apply to an order that reduces or terminates withholding.
Added by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001. § 9.001. ENFORCEMENT OF DECREE. (a) A party affected by a decree of divorce or annulment providing for a division of property as provided by Chapter 7 may request enforcement of that decree by filing a suit to enforce as provided by this chapter in the court that rendered the decree.
(b) Except as otherwise provided in this chapter, a suit to enforce shall be governed by the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit.
(c) A party whose rights, duties, powers, or liabilities may be affected by the suit to enforce is entitled to receive notice by citation and shall be commanded to appear by filing a written answer. Thereafter, the proceedings shall be as in civil cases generally.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.002. CONTINUING AUTHORITY TO ENFORCE DECREE. The court that rendered the decree of divorce or annulment retains the power to enforce the property division as provided by Chapter 7.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.003. FILING DEADLINES. (a) A suit to enforce the division of tangible personal property in existence at the time of the decree of divorce or annulment must be filed before the second anniversary of the date the decree was signed or becomes final after appeal, whichever date is later, or the suit is barred.
(b) A suit to enforce the division of future property not in existence at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes final, whichever date is later, or the suit is barred.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.004. APPLICABILITY TO UNDIVIDED PROPERTY. The procedures and limitations of this subchapter do not apply to existing property not divided on divorce, which are governed by Subchapter C and by the rules applicable to civil cases generally.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.005. NO JURY. A party may not demand a jury trial if the procedures to enforce a decree of divorce or annulment provided by this subchapter are invoked.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.006. ENFORCEMENT OF DIVISION OF PROPERTY. (a) Except as provided by this subchapter and by the Texas Rules of Civil Procedure, the court may render further orders to enforce the division of property made in the decree of divorce or annulment to assist in the implementation of or to clarify the prior order.
(b) The court may specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed.
(c) An order of enforcement does not alter or affect the finality of the decree of divorce or annulment being enforced.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.007. LIMITATION ON POWER OF COURT TO ENFORCE. (a) A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. An order to enforce the division is limited to an order to assist in the implementation of or to clarify the prior order and may not alter or change the substantive division of property.
(b) An order under this section that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable.
(c) The power of the court to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.008. CLARIFICATION ORDER. (a) On the request of a party or on the court's own motion, the court may render a clarifying order before a motion for contempt is made or heard, in conjunction with a motion for contempt or on denial of a motion for contempt.
(b) On a finding by the court that the original form of the division of property is not specific enough to be enforceable by contempt, the court may render a clarifying order setting forth specific terms to enforce compliance with the original division of property.
(c) The court may not give retroactive effect to a clarifying order. (d) The court shall provide a reasonable time for compliance before enforcing a clarifying order by contempt or in another manner.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.009. DELIVERY OF PROPERTY. To enforce the division of property made in a decree of divorce or annulment, the court may make an order to deliver the specific existing property awarded, without regard to whether the property is of especial value, including an award of an existing sum of money or its equivalent.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.010. REDUCTION TO MONEY JUDGMENT. (a) If a party fails to comply with a decree of divorce or annulment and delivery of property awarded in the decree is no longer an adequate remedy, the court may render a money judgment for the damages caused by that failure to comply.
(b) If a party did not receive payments of money as awarded in the decree of divorce or annulment, the court may render judgment against a defaulting party for the amount of unpaid payments to which the party is entitled.
(c) The remedy of a reduction to money judgment is in addition to the other remedies provided by law.
(d) A money judgment rendered under this section may be enforced by any means available for the enforcement of judgment for debt.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.011. RIGHT TO FUTURE PROPERTY. (a) The court may, by any remedy provided by this chapter, enforce an award of the right to receive installment payments or a lump-sum payment due on the maturation of an existing vested or nonvested right to be paid in the future.
(b) The subsequent actual receipt by the non-owning party of property awarded to the owner in a decree of divorce or annulment creates a fiduciary obligation in favor of the owner and imposes a constructive trust on the property for the benefit of the owner.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.012. CONTEMPT. (a) The court may enforce by contempt an order requiring delivery of specific property or an award of a right to future property.
(b) The court may not enforce by contempt an award in a decree of divorce or annulment of a sum of money payable in a lump sum or in future installment payments in the nature of debt, except for:
(1) a sum of money in existence at the time the decree was rendered; or (2) a matured right to future payments as provided by Section 9.011. (c) This subchapter does not detract from or limit the general power of a court to enforce an order of the court by appropriate means.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.013. COSTS. The court may award costs in a proceeding to enforce a property division under this subchapter as in other civil cases.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.014. ATTORNEY'S FEES. The court may award reasonable attorney's fees as costs in a proceeding under this subchapter. The court may order the attorney's fees to be paid directly to the attorney, who may enforce the order for fees in the attorney's own name by any means available for the enforcement of a judgment for debt.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
SUBCHAPTER B. POST-DECREE QUALIFIED DOMESTIC RELATIONS ORDER
§ 9.101. JURISDICTION FOR QUALIFIED DOMESTIC RELATIONS ORDER. (a) Notwithstanding any other provision of this chapter, the court that rendered a final decree of divorce or annulment or another final order dividing property under this title retains continuing, exclusive jurisdiction to render an enforceable qualified domestic relations order or similar order permitting payment of pension, retirement plan, or other employee benefits divisible under the law of this state or of the United States to an alternate payee or other lawful payee.
(b) Unless prohibited by federal law, a suit seeking a qualified domestic relations order or similar order under this section applies to a previously divided pension, retirement plan, or other employee benefit divisible under the law of this state or of the United States, whether the plan or benefit is private, state, or federal.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.102. PROCEDURE. (a) A party to a decree of divorce or annulment may petition the court for a qualified domestic relations order or similar order.
(b) Except as otherwise provided by this code, a petition under this subchapter is governed by the Texas Rules of Civil Procedure that apply to the filing of an original lawsuit.
(c) Each party whose rights may be affected by the petition is entitled to receive notice by citation and shall be commanded to appear by filing a written answer.
(d) The proceedings shall be conducted in the same manner as civil cases generally.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.103. PRIOR FAILURE TO RENDER QUALIFIED DOMESTIC RELATIONS ORDER. A party may petition a court to render a qualified domestic relations order or similar order if the court that rendered a final decree of divorce or annulment or another final order dividing property under this chapter did not provide a qualified domestic relations order or similar order permitting payment of benefits to an alternate payee or other lawful payee.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.104. DEFECTIVE PRIOR DOMESTIC RELATIONS ORDER. If a plan administrator or other person acting in an equivalent capacity determines that a domestic relations order does not satisfy the requirements of a qualified domestic relations order or similar order, the court retains continuing, exclusive jurisdiction over the parties and their property to the extent necessary to render a qualified domestic relations order.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.1045. AMENDMENT OF QUALIFIED DOMESTIC RELATIONS ORDER. (a) A court that renders a qualified domestic relations order retains continuing, exclusive jurisdiction to amend the order to correct the order or clarify the terms of the order to effectuate the division of property ordered by the court.
(b) An amended domestic relations order under this section must be submitted to the plan administrator or other person acting in an equivalent capacity to determine whether the amended order satisfies the requirements of a qualified domestic relations order. Section 9.104 applies to a domestic relations order amended under this section.
Added by Acts 2005, 79th Leg., ch. 481, § 1, eff. June 17, 2005.
§ 9.105. LIBERAL CONSTRUCTION. The court shall liberally construe this subchapter to effect payment of retirement benefits that were divided by a previous decree that failed to contain a qualified domestic relations order or similar order or that contained an order that failed to meet the requirements of a qualified domestic relations order or similar order.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
SUBCHAPTER C. POST-DECREE DIVISION OF PROPERTY
§ 9.201. PROCEDURE FOR DIVISION OF CERTAIN PROPERTY NOT DIVIDED ON DIVORCE OR ANNULMENT. (a) Either former spouse may file a suit as provided by this subchapter to divide property not divided or awarded to a spouse in a final decree of divorce or annulment.
(b) Except as otherwise provided by this subchapter, the suit is governed by the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.202. LIMITATIONS. (a) A suit under this subchapter must be filed before the second anniversary of the date a former spouse unequivocally repudiates the existence of the ownership interest of the other former spouse and communicates that repudiation to the other former spouse.
(b) The two-year limitations period is tolled for the period that a court of this state does not have jurisdiction over the former spouses or over the property.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.203. DIVISION OF UNDIVIDED ASSETS WHEN PRIOR COURT HAD JURISDICTION. (a) If a court of this state failed to dispose of property subject to division in a final decree of divorce or annulment even though the court had jurisdiction over the spouses or over the property, the court shall divide the property in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
(b) If a final decree of divorce or annulment rendered by a court in another state failed to dispose of property subject to division under the law of that state even though the court had jurisdiction to do so, a court of this state shall apply the law of the other state regarding undivided property as required by Section 1, Article IV, United States Constitution (the full faith and credit clause), and enabling federal statutes.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.204. DIVISION OF UNDIVIDED ASSETS WHEN PRIOR COURT LACKED JURISDICTION. (a) If a court of this state failed to dispose of property subject to division in a final decree of divorce or annulment because the court lacked jurisdiction over a spouse or the property, and if that court subsequently acquires the requisite jurisdiction, that court may divide the property in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
(b) If a final decree of divorce or annulment rendered by a court in another state failed to dispose of property subject to division under the law of that state because the court lacked jurisdiction over a spouse or the property, and if a court of this state subsequently acquires the requisite jurisdiction over the former spouses or over the property, the court in this state may divide the property in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.205. ATTORNEY'S FEES. In a proceeding to divide property previously undivided in a decree of divorce or annulment as provided by this subchapter, the court may award reasonable attorney's fees as costs. The court may order the attorney's fees to be paid directly to the attorney, who may enforce the order in the attorney's own name by any means available for the enforcement of a judgment for debt.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
SUBCHAPTER D. DISPOSITION OF UNDIVIDED BENEFICIAL INTEREST
§ 9.301. PRE-DECREE DESIGNATION OF EX-SPOUSE AS BENEFICIARY OF LIFE INSURANCE. (a) If a decree of divorce or annulment is rendered after an insured has designated the insured's spouse as a beneficiary under a life insurance policy in force at the time of rendition, a provision in the policy in favor of the insured's former spouse is not effective unless:
(1) the decree designates the insured's former spouse as the beneficiary; (2) the insured redesignates the former spouse as the beneficiary after rendition of the decree; or
(3) the former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse.
(b) If a designation is not effective under Subsection (a), the proceeds of the policy are payable to the named alternative beneficiary or, if there is not a named alternative beneficiary, to the estate of the insured.
(c) An insurer who pays the proceeds of a life insurance policy issued by the insurer to the beneficiary under a designation that is not effective under Subsection (a) is liable for payment of the proceeds to the person or estate provided by Subsection (b) only if:
(1) before payment of the proceeds to the designated beneficiary, the insurer receives written notice at the home office of the insurer from an interested person that the designation is not effective under Subsection (a); and
(2) the insurer has not interpleaded the proceeds into the registry of a court of competent jurisdiction in accordance with the Texas Rules of Civil Procedure.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 9.302. PRE-DECREE DESIGNATION OF EX-SPOUSE AS BENEFICIARY IN RETIREMENT BENEFITS AND OTHER FINANCIAL PLANS. (a) If a decree of divorce or annulment is rendered after a spouse, acting in the capacity of a participant, annuitant, or account holder, has designated the other spouse as a beneficiary under an individual retirement account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant in force at the time of rendition, the designating provision in the plan in favor of the other former spouse is not effective unless:
(1) the decree designates the other former spouse as the beneficiary; (2) the designating former spouse redesignates the other former spouse as the beneficiary after rendition of the decree; or
(3) the other former spouse is designated to receive the proceeds or benefits in trust for, on behalf of, or for the benefit of a child or dependent of either former spouse.
(b) If a designation is not effective under Subsection (a), the benefits or proceeds are payable to the named alternative beneficiary or, if there is not a named alternative beneficiary, to the designating former spouse.
(c) A business entity, employer, pension trust, insurer, financial institution, or other person obligated to pay retirement benefits or proceeds of a financial plan covered by this section who pays the benefits or proceeds to the beneficiary under a designation of the other former spouse that is not effective under Subsection (a) is liable for payment of the benefits or proceeds to the person provided by Subsection (b) only if:
(1) before payment of the benefits or proceeds to the designated beneficiary, the payor receives written notice at the home office or principal office of the payor from an interested person that the designation of the beneficiary or fiduciary is not effective under Subsection (a); and
(2) the payor has not interpleaded the benefits or proceeds into the registry of a court of competent jurisdiction in accordance with the Texas Rules of Civil Procedure.
(d) This section does not affect the right of a former spouse to assert an ownership interest in an undivided pension, retirement, annuity, or other financial plan described by this section as provided by this subchapter.
(e) This section does not apply to the disposition of a beneficial interest in a retirement benefit or other financial plan of a public retirement system as defined by Section 802.001, Government Code.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
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