S. B. No. 334

Recodification of Title 1 of the Family Code

Effective Date: April 17, 1997

AN ACT

relating to the recodification of statutes relating to the marriage relationship.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.   The Family Code is recodified by reenacting Title 1 to read as follows:

TITLE 1. THE MARRIAGE RELATIONSHIP

SUBTITLE A. MARRIAGE

CHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER A. DEFINITIONS

Sec. 1.001.  APPLICABILITY OF DEFINITIONS. (a)  The definitions in this subchapter apply to this title.

(b)  Except as provided by this subchapter, the definitions in Chapter 101 apply to terms used in this title.

(c)  If, in another part of this title, a term defined by this subchapter has a meaning different from the meaning provided by this subchapter, the meaning of that other provision prevails.

Sec. 1.002.  COURT. "Court" means the district court, juvenile court having the jurisdiction of a district court, or other court expressly given jurisdiction of a suit under this title.

Sec. 1.003.  SUIT FOR DISSOLUTION OF MARRIAGE. "Suit for dissolution of a marriage" includes a suit for divorce or annulment or to declare a marriage void.

[Sections 1.004-1.100 reserved for expansion]

SUBCHAPTER B. PUBLIC POLICY

Sec. 1.101.  EVERY MARRIAGE PRESUMED VALID. In order to promote the public health and welfare and to provide the necessary records, this code specifies detailed rules to be followed in establishing the marriage relationship. However, in order to provide stability for those entering into the marriage relationship in good faith and to provide for an orderly determination of parentage and security for the children of the relationship, it is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable. Therefore, every marriage entered into in this state is presumed to be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter.

Sec. 1.102.  MOST RECENT MARRIAGE PRESUMED VALID. When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.

Sec. 1.103.  PERSONS MARRIED ELSEWHERE. The law of this state applies to persons married elsewhere who are domiciled in this state.

Sec. 1.104.  CAPACITY OF SPOUSE. Except as expressly provided by statute or by the constitution, a person, regardless of age, who has been married in accordance with the law of this state has the capacity and power of an adult, including the capacity to contract.

Sec. 1.105.  JOINDER IN CIVIL SUITS. (a)  A spouse may sue and be sued without the joinder of the other spouse.

(b)  When claims or liabilities are joint and several, the spouses may be joined under the rules relating to joinder of parties generally.

Sec. 1.106.  CRIMINAL CONVERSATION NOT AUTHORIZED. A right of action by one spouse against a third party for criminal conversation is not authorized in this state.

Sec. 1.107.  ALIENATION OF AFFECTION NOT AUTHORIZED. A right of action by one spouse against a third party for alienation of affection is not authorized in this state.

Sec. 1.108.  PROMISE OR AGREEMENT MUST BE IN WRITING. A promise or agreement made on consideration of marriage or nonmarital conjugal cohabitation is not enforceable unless the promise or agreement or a memorandum of the promise or agreement is in writing and signed by the person obligated by the promise or agreement.

CHAPTER 2. THE MARRIAGE RELATIONSHIP

SUBCHAPTER A. APPLICATION FOR MARRIAGE LICENSE

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.";

(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; or

(D)  a son or daughter of a brother or sister, of the whole or half blood or by adoption.";

(7)  a printed oath reading: "I SOLEMNLY SWEAR (OR AFFIRM) THAT THE INFORMATION I HAVE GIVEN IN THIS APPLICATION IS CORRECT.";

(8)  spaces immediately below the printed oath for the applicants' signatures;

(9)  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;

(10)  spaces for indicating the date of the marriage and the county in which the marriage is performed; and

(11)  a space for the address to which the applicants desire the completed license to be mailed.

Sec. 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.

Sec. 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.

Sec. 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 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; or

(D)  a son or daughter of a 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.

Sec. 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.

Sec. 2.009.  ISSUANCE OF LICENSE. (a)  Except as provided by Subsection (b), 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 14 years of age and has not been granted a court order as provided by Section 2.103;

(4)  is 14 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 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," 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)  record on the reverse side of 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; and

(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.

Sec. 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.

Sec. 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.

Sec. 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.

[Sections 2.013-2.100 reserved for expansion]

SUBCHAPTER B. UNDERAGE APPLICANTS

Sec. 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.

Sec. 2.102.  PARENTAL CONSENT FOR UNDERAGE APPLICANT. (a)  If an applicant is 14 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.

Sec. 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 a guardian ad litem to represent the minor in the proceeding and to speak for or against the petition in the manner the guardian ad litem believes to be in the best interest of the minor. The court shall specify a fee to be paid by the minor for the services of the guardian 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.

[Sections 2.104-2.200 reserved for expansion]

SUBCHAPTER C. CEREMONY AND RETURN OF LICENSE

Sec. 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.

Sec. 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).

Sec. 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.

Sec. 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; or

(2)  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, 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

[Sections 2.210-2.300 reserved for expansion]

SUBCHAPTER D. VALIDITY OF MARRIAGE

Sec. 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.

Sec. 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; and

(2)  at least one party to the marriage participated in the ceremony in good faith and that party treats the marriage as valid.

[Sections 2.303-2.400 reserved for expansion]

SUBCHAPTER E. MARRIAGE WITHOUT FORMALITIES

Sec. 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.

Sec. 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; or

(D)  a son or daughter of a 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)  If either party is underage at the time of filing a declaration, the declaration must have attached an acknowledged consent signed by a parent of each underage person.

Sec. 2.403.  PROOF OF IDENTITY AND AGE. 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.

Sec. 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 16 years of age and waiver of the age requirement has not been ordered; 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.

Sec. 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.

[Sections 2.406-2.500 reserved for expansion]

SUBCHAPTER F. RIGHTS AND DUTIES OF SPOUSES

Sec. 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.

SUBTITLE B.  PROPERTY RIGHTS AND LIABILITIES

CHAPTER 3. MARITAL PROPERTY RIGHTS AND LIABILITIES

SUBCHAPTER A.  GENERAL RULES FOR SEPARATE AND COMMUNITY PROPERTY

Sec. 3.001.  SEPARATE PROPERTY. A spouse's separate property consists of:

(1)  the property owned or claimed by the spouse before marriage;

(2)  the property acquired by the spouse during marriage by gift, devise, or descent; and

(3)  the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Sec. 3.002.  COMMUNITY PROPERTY. Community property consists of the property, other than separate property, acquired by either spouse during marriage.

Sec. 3.003.  PRESUMPTION OF COMMUNITY PROPERTY. (a)  Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

(b)  The degree of proof necessary to establish that property is separate property is clear and convincing evidence.

Sec. 3.004.  RECORDATION OF SEPARATE PROPERTY. (a)  A subscribed and acknowledged schedule of a spouse's separate property may be recorded in the deed records of the county in which the parties, or one of them, reside and in the county or counties in which the real property is located.

(b)  A schedule of a spouse's separate real property is not constructive notice to a good faith purchaser for value or a creditor without actual notice unless the instrument is acknowledged and recorded in the deed records of the county in which the real property is located.

Sec. 3.005.  GIFTS BETWEEN SPOUSES. If one spouse makes a gift of property to the other spouse, the gift is presumed to include all the income and property that may arise from that property.

[Sections 3.006-3.100 reserved for expansion]

SUBCHAPTER B. MANAGEMENT, CONTROL, AND DISPOSITION OF MARITAL PROPERTY

Sec. 3.101.  MANAGING SEPARATE PROPERTY. Each spouse has the sole management, control, and disposition of that spouse's separate property.

Sec. 3.102.  MANAGING COMMUNITY PROPERTY. (a)  During marriage, each spouse has the sole management, control, and disposition of the community property that the spouse would have owned if single, including:

(1)  personal earnings;

(2)  revenue from separate property;

(3)  recoveries for personal injuries; and

(4)  the increase and mutations of, and the revenue from, all property subject to the spouse's sole management, control, and disposition.

(b)  If community property subject to the sole management, control, and disposition of one spouse is mixed or combined with community property subject to the sole management, control, and disposition of the other spouse, then the mixed or combined community property is subject to the joint management, control, and disposition of the spouses, unless the spouses provide otherwise by power of attorney in writing or other agreement.

(c)  Except as provided by Subsection (a), community property is subject to the joint management, control, and disposition of the spouses unless the spouses provide otherwise by power of attorney in writing or other agreement.

Sec. 3.103.  MANAGING EARNINGS OF MINOR. During the marriage of the parents of an unemancipated minor for whom a managing conservator has not been appointed, the earnings of the minor are subject to the joint management, control, and disposition of the parents of the minor, unless otherwise provided by agreement of the parents or by judicial order.

Sec. 3.104.  PROTECTION OF THIRD PERSONS. (a)  During marriage, property is presumed to be subject to the sole management, control, and disposition of a spouse if it is held in that spouse's name, as shown by muniment, contract, deposit of funds, or other evidence of ownership, or if it is in that spouse's possession and is not subject to such evidence of ownership.

(b)  A third person dealing with a spouse is entitled to rely, as against the other spouse or anyone claiming from that spouse, on that spouse's authority to deal with the property if:

(1)  the property is presumed to be subject to the sole management, control, and disposition of the spouse; and

(2)  the person dealing with the spouse:

(A)  is not a party to a fraud on the other spouse or another person; and

(B)  does not have actual or constructive notice of the spouse's lack of authority.

[Sections 3.105-3.200 reserved for expansion]

SUBCHAPTER C. MARITAL PROPERTY LIABILITIES

Sec. 3.201.  SPOUSAL LIABILITY. (a)  A person is personally liable for the acts of the person's spouse only if:

(1)  the spouse acts as an agent for the person; or

(2)  the spouse incurs a debt for necessaries as provided by Subchapter F, Chapter 2.

(b)  Except as provided by this subchapter, community property is not subject to a liability that arises from an act of a spouse.

(c)  A spouse does not act as an agent for the other spouse solely because of the marriage relationship.

Sec. 3.202.  RULES OF MARITAL PROPERTY LIABILITY. (a)  A spouse's separate property is not subject to liabilities of the other spouse unless both spouses are liable by other rules of law.

(b)  Unless both spouses are personally liable as provided by this subchapter, the community property subject to a spouse's sole management, control, and disposition is not subject to:

(1)  any liabilities that the other spouse incurred before marriage; or

(2)  any nontortious liabilities that the other spouse incurs during marriage.

(c)  The community property subject to a spouse's sole or joint management, control, and disposition is subject to the liabilities incurred by the spouse before or during marriage.

(d)  All community property is subject to tortious liability of either spouse incurred during marriage.

Sec. 3.203.  ORDER IN WHICH PROPERTY IS SUBJECT TO EXECUTION. (a)  A judge may determine, as deemed just and equitable, the order in which particular separate or community property is subject to execution and sale to satisfy a judgment, if the property subject to liability for a judgment includes any combination of:

(1)  a spouse's separate property;

(2)  community property subject to a spouse's sole management, control, and disposition;

(3)  community property subject to the other spouse's sole management, control, and disposition; and

(4)  community property subject to the spouses' joint management, control, and disposition.

(b)  In determining the order in which particular property is subject to execution and sale, the judge shall consider the facts surrounding the transaction or occurrence on which the suit is based.

[Sections 3.204-3.300 reserved for expansion]

SUBCHAPTER D. MANAGEMENT, CONTROL, AND DISPOSITION OF MARITAL PROPERTY UNDER UNUSUAL CIRCUMSTANCES

Sec. 3.301.  INCAPACITATED, MISSING, ABANDONED, OR SEPARATED SPOUSE. (a)  A spouse may file a sworn petition stating the facts that make it desirable for the petitioning spouse to manage, control, and dispose of community property described or defined in the petition that would otherwise be subject to the sole or joint management, control, and disposition of the other spouse if:

(1)  because of physical or mental incapacity, the other spouse is unable to manage, control, or dispose of the community property subject to that spouse's sole or joint management, control, and disposition;

(2)  the other spouse has disappeared and that spouse's location remains unknown to the petitioning spouse, unless the spouse is reported to be a prisoner of war or missing on public service;

(3)  the other spouse has permanently abandoned the petitioning spouse; or

(4)  the spouses are permanently separated.

(b)  The petition may be filed in a court in the county in which the petitioner resided at the time the incapacity or separation began, or the abandonment or disappearance occurred, not earlier than the 60th day after the date of the occurrence of the event. If both spouses are nonresidents of this state at the time the petition is filed, the petition may be filed in a court in a county in which any part of the described or defined community property is located.

Sec. 3.302.  SPOUSE MISSING ON PUBLIC SERVICE. (a)  If a spouse is reported by an executive department of the United States to be a prisoner of war or missing on the public service of the United States, the spouse of the prisoner of war or missing person may file a sworn petition stating the facts that make it desirable for the petitioner to manage, control, and dispose of the community property described or defined in the petition that would otherwise be subject to the sole or joint management, control, and disposition of the imprisoned or missing spouse.

(b)  The petition may be filed in a court in the county in which the petitioner resided at the time the report was made not earlier than six months after the date of the notice that a spouse is reported to be a prisoner of war or missing on public service. If both spouses were nonresidents of this state at the time the report was made, the petition shall be filed in a court in a county in which any part of the described or defined property is located.

Sec. 3.303.  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 an appointed attorney's services as a part of the costs of the suit.

Sec. 3.304.  NOTICE OF HEARING; CITATION. (a)  Notice of the hearing, accompanied by a copy of the petition, shall be issued and served on the attorney representing the respondent, if an attorney has been appointed.

(b)  If an attorney has not been appointed for the respondent, citation shall be issued and served on the respondent as in other civil cases.

Sec. 3.305.  CITATION BY PUBLICATION. (a)  If the residence of the respondent, other than a respondent reported to be a prisoner of war or missing on public service, is unknown, citation shall be published in a newspaper of general circulation published in the county in which the petition was filed. If that county has no newspaper of general circulation, citation shall be published in a newspaper of general circulation in an adjacent county or in the nearest county in which a newspaper of general circulation is published.

(b)  The notice shall be published once a week for two consecutive weeks before the hearing, but the first notice may not be published after the 20th day before the date set for the hearing.

Sec. 3.306.  COURT ORDER FOR MANAGEMENT, CONTROL, AND DISPOSITION OF COMMUNITY PROPERTY. (a)  After hearing the evidence in a suit under this subchapter, the court, on terms the court considers 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.

(b)  The court may:

(1)  impose any condition and restriction 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.

Sec. 3.307.  CONTINUING JURISDICTION OF COURT; VACATING ORIGINAL ORDER. (a)  The court has continuing jurisdiction over the court's order rendered under this subchapter.

(b)  On the motion of either spouse, the court shall amend or vacate the original order after notice and hearing if:

(1)  the incapacitated spouse's capacity is restored;

(2)  the spouse who disappeared reappears;

(3)  the abandonment or permanent separation ends; or

(4)  the spouse who was reported to be a prisoner of war or missing on public service returns.

Sec. 3.308.  RECORDING ORDER TO AFFECT REAL PROPERTY. An order authorized by this subchapter affecting real property is not constructive notice to a good faith purchaser for value or to a creditor without actual notice unless the order is recorded in the deed records of the county in which the real property is located.

Sec. 3.309.  REMEDIES CUMULATIVE. The remedies provided in this subchapter are cumulative of other rights, powers, and remedies afforded spouses by law.

CHAPTER 4. PREMARITAL AND MARITAL PROPERTY AGREEMENTS

SUBCHAPTER A. UNIFORM PREMARITAL AGREEMENT ACT

Sec. 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.

Sec. 4.002. FORMALITIES. A premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.

Sec. 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.

Sec. 4.004.  EFFECT OF MARRIAGE. A premarital agreement becomes effective on marriage.

Sec 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 4.010.  SHORT TITLE. This subchapter may be cited as the Uniform Premarital Agreement Act.

[Sections 4.011-4.100 reserved for expansion]

SUBCHAPTER B. MARITAL PROPERTY AGREEMENT

Sec. 4.101.  DEFINITION. In this subchapter, "property" has the meaning assigned by Section 4.001.

Sec. 4.102. PARTITION OR EXCHANGE OF COMMUNITY PROPERTY. At any time, the spouses may partition or exchange between themselves any 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.

Sec. 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.

Sec. 4.104. FORMALITIES. A partition or exchange agreement must be in writing and signed by both parties.

Sec. 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.

Sec. 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.

CHAPTER 5. HOMESTEAD RIGHTS

SUBCHAPTER A. SALE OF HOMESTEAD; GENERAL RULE

Sec. 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.

Sec. 5.002.  SALE OF HOMESTEAD FOR INCAPACITATED SPOUSE. If the homestead is the separate property of a spouse and the other spouse has been judicially declared incapacitated, the owner may sell, convey, or encumber the homestead without the joinder of the other spouse.

[Sections 5.003-5.100 reserved for expansion]

SUBCHAPTER B. SALE OF HOMESTEAD UNDER UNUSUAL CIRCUMSTANCES

Sec. 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)  is incapacitated, whether judicially declared incapacitated or not;

(2)  has disappeared and that the location of the spouse remains unknown to the petitioning spouse;

(3)  has permanently abandoned the homestead and the petitioning spouse;

(4)  has permanently abandoned the homestead and the spouses are permanently separated; or

(5)  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.

Sec. 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)  is incapacitated, whether judicially declared incapacitated or not;

(2)  has disappeared and that the location of the spouse remains unknown to the petitioning spouse;

(3)  has permanently abandoned the homestead and the petitioning spouse;

(4)  has permanently abandoned the homestead and the spouses are permanently separated; or

(5)  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.

Sec. 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)-(4) and 5.102(1)-(4) 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 5.107.  SALE OF COMMUNITY HOMESTEAD FOR SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the homestead is the community property of the spouses and one spouse has been judicially declared incapacitated, the competent spouse may sell, convey, or encumber the homestead without the joinder of the other spouse.

Sec. 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.

SUBTITLE C. DISSOLUTION OF MARRIAGE

CHAPTER 6. SUIT FOR DISSOLUTION OF MARRIAGE

SUBCHAPTER A. GROUNDS FOR DIVORCE AND DEFENSES

Sec. 6.001.  INSUPPORTABILITY. On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

Sec. 6.002.  CRUELTY. The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.

Sec. 6.003.  ADULTERY. The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

Sec. 6.004.  CONVICTION OF FELONY. (a)  The court may grant a divorce in favor of one spouse if during the marriage the other spouse:

(1)  has been convicted of a felony;

(2)  has been imprisoned for at least one year in the state penitentiary, a federal penitentiary, or the penitentiary of another state; and

(3)  has not been pardoned.

(b)  The court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.

Sec. 6.005.  ABANDONMENT. The court may grant a divorce in favor of one spouse if the other spouse:

(1)  left the complaining spouse with the intention of abandonment; and

(2)  remained away for at least one year.

Sec. 6.006.  LIVING APART. The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.

Sec. 6.007.  CONFINEMENT IN MENTAL HOSPITAL. The court may grant a divorce in favor of one spouse if at the time the suit is filed:

(1)  the other spouse has been confined in a state mental hospital or private mental hospital, as defined in Section 571.003, Health and Safety Code, in this state or another state for at least three years; and

(2)  it appears that the hospitalized spouse's mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.

Sec. 6.008.  DEFENSES. (a)  The defenses to a suit for divorce of recrimination and adultery are abolished.

(b)  Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation.

[Sections 6.009-6.100 reserved for expansion]

SUBCHAPTER B. GROUNDS FOR ANNULMENT

Sec. 6.101.  ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 14. (a)  The court may grant an annulment of a licensed or informal marriage of a person under 14 years of age unless a court order has been obtained as provided in Subchapter B, Chapter 2.

(b)  A petition for annulment under this section may be filed by a next friend for the benefit of a person under 14 years of age or on the petition of the parent or the judicially designated managing conservator or guardian, whether an individual, authorized agency, or court, of the person.

(c)  A suit by a parent, managing conservator, or guardian of the person may be brought at any time before the person is 14 years of age.

(d)  A suit under this section to annul the marriage of a person 14 years of age or older that was entered into before the person was 14 years of age is barred unless the suit is filed within the later of:

(1)  90 days after the date the petitioner knew or should have known of the marriage; or

(2)  90 days after the date of the 14th birthday of the underage party.

Sec. 6.102.  ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 18. (a)  The court may grant an annulment of a licensed or informal marriage of a person 14 years of age or older but under 18 years of age that occurred without parental consent or without a court order as provided by Subchapters B and E, Chapter 2.

(b)  A petition for annulment under this section may be filed by:

(1)  a next friend for the benefit of the underage party;

(2)  a parent; or

(3)  the judicially designated managing conservator or guardian of the person of the underage party, whether an individual, authorized agency, or court.

(c)  A suit filed under this subsection by a next friend is barred unless it is filed within 90 days after the date of the marriage.

Sec. 6.103.  UNDERAGE ANNULMENT BARRED BY ADULTHOOD. A suit to annul a marriage may not be filed under Section 6.101 or 6.102 by a parent, managing conservator, or guardian of a person after the 18th birthday of the person.

Sec. 6.104.  DISCRETIONARY ANNULMENT OF UNDERAGE MARRIAGE. (a)  An annulment under Section 6.101 or 6.102 of a marriage may be granted at the discretion of the court sitting without a jury.

(b)  In exercising its discretion, the court shall consider the pertinent facts concerning the welfare of the parties to the marriage, including whether the female is pregnant.

Sec. 6.105.  UNDER INFLUENCE OF ALCOHOL OR NARCOTICS. The court may grant an annulment of a marriage to a party to the marriage if:

(1)  at the time of the marriage the petitioner was under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage; and

(2)  the petitioner has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended.

Sec. 6.106.  IMPOTENCY. The court may grant an annulment of a marriage to a party to the marriage if:

(1)  either party, for physical or mental reasons, was permanently impotent at the time of the marriage;

(2)  the petitioner did not know of the impotency at the time of the marriage; and

(3)  the petitioner has not voluntarily cohabited with the other party since learning of the impotency.

Sec. 6.107.  FRAUD, DURESS, OR FORCE. The court may grant an annulment of a marriage to a party to the marriage if:

(1)  the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and

(2)  the petitioner has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force.

Sec. 6.108.  MENTAL INCAPACITY. (a)  The court may grant an annulment of a marriage to a party to the marriage on the suit of the party or the party's guardian or next friend, if the court finds it to be in the party's best interest to be represented by a guardian or next friend, if:

(1)  at the time of the marriage the petitioner did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect; and

(2)  since the marriage ceremony, the petitioner has not voluntarily cohabited with the other party during a period when the petitioner possessed the mental capacity to recognize the marriage relationship.

(b)  The court may grant an annulment of a marriage to a party to the marriage if:

(1)  at the time of the marriage the other party did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect;

(2)  at the time of the marriage the petitioner neither knew nor reasonably should have known of the mental disease or defect; and

(3)  since the date the petitioner discovered or reasonably should have discovered the mental disease or defect, the petitioner has not voluntarily cohabited with the other party.

Sec. 6.109.  CONCEALED DIVORCE. (a)  The court may grant an annulment of a marriage to a party to the marriage if:

(1)  the other party was divorced from a third party within the 30-day period preceding the date of the marriage ceremony;

(2)  at the time of the marriage ceremony the petitioner did not know, and a reasonably prudent person would not have known, of the divorce; and

(3)  since the petitioner discovered or a reasonably prudent person would have discovered the fact of the divorce, the petitioner has not voluntarily cohabited with the other party.

(b)  A suit may not be brought under this section after the first anniversary of the date of the marriage.

Sec. 6.110.  MARRIAGE LESS THAN 72 HOURS AFTER ISSUANCE OF LICENSE. (a)  The court may grant an annulment of a marriage to a party to the marriage if the marriage ceremony took place in violation of Section 2.204 during the 72-hour period immediately following the issuance of the marriage license.

(b)  A suit may not be brought under this section after the 30th day after the date of the marriage.

Sec. 6.111.  DEATH OF PARTY TO VOIDABLE MARRIAGE. A marriage subject to annulment may not be challenged in a proceeding instituted after the death of either party to the marriage.

[Sections 6.112-6.200 reserved for expansion]

SUBCHAPTER C. DECLARING A MARRIAGE VOID

Sec. 6.201.  CONSANGUINITY. A marriage is void if one party to the marriage is related to the other as:

(1)  an ancestor or descendant, by blood or adoption;

(2)  a brother or sister, of the whole or half blood or by adoption;

(3)  a parent's brother or sister, of the whole or half blood or by adoption; or

(4)  a son or daughter of a brother or sister, of the whole or half blood or by adoption.

Sec. 6.202.  MARRIAGE DURING EXISTENCE OF PRIOR MARRIAGE. (a)  A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.

(b)  The later marriage that is void under this section becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.

Sec. 6.203.  CERTAIN VOID MARRIAGES VALIDATED. Except for a marriage that would have been void under Section 6.201, a marriage that was entered into before January 1, 1970, in violation of the prohibitions of Article 496, Penal Code of Texas, 1925, is validated from the date the marriage commenced if the parties continued until January 1, 1970, to live together as husband and wife and to represent themselves to others as being married.

[Sections 6.204-6.300 reserved for expansion]

SUBCHAPTER D. JURISDICTION, VENUE, AND RESIDENCE QUALIFICATIONS

Sec. 6.301.  GENERAL RESIDENCY RULE FOR DIVORCE SUIT. A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been:

(1)  a domiciliary of this state for the preceding six-month period; and

(2)  a resident of the county in which the suit is filed for the preceding 90-day period.

Sec. 6.302.  SUIT FOR DIVORCE BY NONRESIDENT SPOUSE. If one spouse has been a domiciliary of this state for at least the last six months, a spouse domiciled in another state or nation may file a suit for divorce in the county in which the domiciliary spouse resides at the time the petition is filed.

Sec. 6.303.  ABSENCE ON PUBLIC SERVICE. Time spent by a Texas domiciliary outside this state or outside the county of residence of the domiciliary while in the service of the armed forces or other service of the United States or of this state is considered residence in this state and in that county.

Sec. 6.304.  ARMED FORCES PERSONNEL NOT PREVIOUSLY RESIDENTS. A person not previously a resident of this state who is serving in the armed forces of the United States and has been stationed at one or more military installations in this state for at least the last six months and at a military installation in a county of this state for at least the last 90 days is considered to be a Texas domiciliary and a resident of that county for those periods for the purpose of filing suit for dissolution of a marriage.

Sec. 6.305.  ACQUIRING JURISDICTION OVER NONRESIDENT RESPONDENT. (a)  If the petitioner in a suit for dissolution of a marriage is a resident or a domiciliary of this state at the time the suit for dissolution is filed, the court may exercise personal jurisdiction over the respondent or over the respondent's personal representative although the respondent is not a resident of this state if:

(1)  this state is the last marital residence of the petitioner and the respondent and the suit is filed before the second anniversary of the date on which marital residence ended; or

(2)  there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction.

(b)  A court acquiring jurisdiction under this section also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship.

Sec. 6.306.  JURISDICTION TO ANNUL MARRIAGE. (a)  A suit for annulment of a marriage may be maintained in this state only if the parties were married in this state or if either party is domiciled in this state.

(b)  A suit for annulment is a suit in rem, affecting the status of the parties to the marriage.

Sec. 6.307.  JURISDICTION TO DECLARE MARRIAGE VOID. (a)  Either party to a marriage made void by this chapter may sue to have the marriage declared void, or the court may declare the marriage void in a collateral proceeding.

(b)  The court may declare a marriage void only if:

(1)  the purported marriage was contracted in this state; or

(2)  either party is domiciled in this state.

(c)  A suit to have a marriage declared void is a suit in rem, affecting the status of the parties to the purported marriage.

Sec. 6.308.  EXERCISING PARTIAL JURISDICTION. (a)  A court in which a suit for dissolution of a marriage is filed may exercise its jurisdiction over those portions of the suit for which it has authority.

(b)  The court's authority to resolve the issues in controversy between the parties may be restricted because the court lacks:

(1)  the required personal jurisdiction over a nonresident party in a suit for dissolution of the marriage;

(2)  the required jurisdiction under Chapter 152; or

(3)  the required jurisdiction under Chapter 159.

[Sections 6.309-6.400 reserved for expansion]

SUBCHAPTER E. FILING SUIT

Sec. 6.401.  CAPTION. (a)  Pleadings in a suit for divorce or annulment shall be styled "In the Matter of the Marriage of ________ and ________."

(b)  Pleadings in a suit to declare a marriage void shall be styled "A Suit To Declare Void the Marriage of __________ and __________."

Sec. 6.402.  PLEADINGS. (a)  A petition in a suit for dissolution of a marriage is sufficient without the necessity of specifying the underlying evidentiary facts if the petition alleges the grounds relied on substantially in the language of the statute.

(b)  Allegations of grounds for relief, matters of defense, or facts relied on for a temporary order that are stated in short and plain terms are not subject to special exceptions because of form or sufficiency.

(c)  The court shall strike an allegation of evidentiary fact from the pleadings on the motion of a party or on the court's own motion.

Sec. 6.403.  ANSWER. The respondent in a suit for dissolution of a marriage is not required to answer on oath or affirmation.

Sec. 6.404.  STATEMENT ON ALTERNATE DISPUTE RESOLUTION. (a)  A party to a proceeding under this title shall include in the first pleading filed by the party in the proceeding the following statement:

"I AM AWARE THAT IT IS THE POLICY OF THE STATE OF TEXAS TO PROMOTE THE AMICABLE AND NONJUDICIAL SETTLEMENT OF DISPUTES INVOLVING CHILDREN AND FAMILIES. I AM AWARE OF ALTERNATIVE DISPUTE RESOLUTION METHODS, INCLUDING MEDIATION. WHILE I RECOGNIZE THAT ALTERNATIVE DISPUTE RESOLUTION IS AN ALTERNATIVE TO AND NOT A SUBSTITUTE FOR A TRIAL AND THAT THIS CASE MAY BE TRIED IF IT IS NOT SETTLED, I REPRESENT TO THE COURT THAT I WILL ATTEMPT IN GOOD FAITH TO RESOLVE CONTESTED ISSUES IN THIS CASE BY ALTERNATIVE DISPUTE RESOLUTION WITHOUT THE NECESSITY OF COURT INTERVENTION."

(b)  The statement prescribed by Subsection (a) must be printed in boldfaced type or capital letters and signed by the party.

(c)  The statement prescribed by Subsection (a) is not required for:

(1)  a pleading in which citation on all respondents entitled to service of citation is requested, issued, and given by publication;

(2)  a motion or pleading that seeks a protective order as provided by Chapter 71; or

(3)  a special appearance under Rule 120a, Texas Rules of Civil Procedure.

Sec. 6.405.  PROTECTIVE ORDER. (a)  The petition in a suit for dissolution of a marriage must state whether a protective order under Chapter 71 is in effect or if an application for a protective order is pending with regard to the parties to the suit.

(b)  The petitioner shall attach to the petition a copy of each protective order issued under Chapter 71 in which one of the parties to the suit was the applicant and the other party was the respondent without regard to the date of the order. If a copy of the protective order is not available at the time of filing, the petition must state that a copy of the order will be filed with the court before any hearing.

Sec. 6.406.  MANDATORY JOINDER OF SUIT AFFECTING PARENT-CHILD RELATIONSHIP.  (a)  The petition in a suit for dissolution of a marriage shall state whether there are children born or adopted of the marriage who are under 18 years of age or who are otherwise entitled to support as provided by Chapter 154.

(b)  If the parties are parents of a child, as defined by Section 101.003, and the child is not under the continuing jurisdiction of another court as provided by Chapter 155, the suit for dissolution of a marriage must include a suit affecting the parent-child relationship under Title 5.

Sec. 6.407.  TRANSFER OF SUIT AFFECTING PARENT-CHILD RELATIONSHIP TO DIVORCE COURT. (a)  If a suit affecting the parent-child relationship is pending at the time the suit for dissolution of a marriage is filed, the suit affecting the parent-child relationship shall be transferred as provided by Section 103.002 to the court in which the suit for dissolution is filed.

(b)  If the parties are parents of a child, as defined by Section 101.003, and the child is under the continuing jurisdiction of another court under Chapter 155, either party to the suit for dissolution of a marriage may move that court for transfer of the suit affecting the parent-child relationship to the court having jurisdiction of the suit for dissolution. The court with continuing jurisdiction shall transfer the proceeding as provided by Chapter 155. On the transfer of the proceedings, the court with jurisdiction of the suit for dissolution of a marriage shall consolidate the two causes of action.

(c)  After transfer of a suit affecting the parent-child relationship as provided in Chapter 155, the court with jurisdiction of the suit for dissolution of a marriage has jurisdiction to render an order in the suit affecting the parent-child relationship as provided by Title 5.

Sec. 6.408.  SERVICE OF CITATION. Citation on the filing of an original petition in a suit for dissolution of a marriage shall be issued and served as in other civil cases. Citation may also be served on any other person who has or who may assert an interest in the suit for dissolution of the marriage.

Sec. 6.409.  CITATION BY PUBLICATION. (a)  Citation in a suit for dissolution of a marriage may be by publication as in other civil cases, except that notice shall be published one time only.

(b)  The notice shall be sufficient if given in substantially the following form:

"STATE OF TEXAS

To (name of person to be served with citation), and to all whom it may concern (if the name of any person to be served with citation is unknown), Respondent(s),

"You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10 a.m. on the Monday next following the expiration of 20 days after you were served this citation and petition, a default judgment may be taken against you. The petition of _______________, Petitioner, was filed in the Court of _______________ County, Texas, on the _____ day of _______________, against _______________, Respondent(s), numbered ______, and entitled 'In the Matter of Marriage of _______________ and _______________. The suit requests _______________ (statement of relief sought).'

"The Court has authority in this suit to enter any judgment or decree dissolving the marriage and providing for the division of property that will be binding on you.

"Issued and given under my hand and seal of said Court

at __________, Texas, this the _____ day of _______________, _____.

"...............................

Clerk of the _________ Court of

_________________ County, Texas

By _______, Deputy."

(c)  The form authorized in this section and the form authorized by Section 102.010 may be combined in appropriate situations.

(d)  If the citation is for a suit in which a parent-child relationship does not exist, service by publication may be completed by posting the citation at the courthouse door for seven days in the county in which the suit is filed.

(e)  If the petitioner or the petitioner's attorney of record makes an oath that no child presently under 18 years of age was born or adopted by the spouses and that no appreciable amount of property was accumulated by the spouses during the marriage, the court may dispense with the appointment of an attorney ad litem. In a case in which citation was by publication, a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the suit as a part of the record.

[Sections 6.410-6.500 reserved for expansion]

SUBCHAPTER F. TEMPORARY ORDERS

Sec. 6.501.  TEMPORARY RESTRAINING ORDER. (a)  After the filing of a suit for dissolution of a marriage, on the motion of a party or on the court's own motion, the court may grant a temporary restraining order without notice to the adverse party for the preservation of the property and for the protection of the parties as necessary, including an order prohibiting one or both parties from:

(1)  intentionally communicating by telephone or in writing with the other party by use of vulgar, profane, obscene, or indecent language or in a coarse or offensive manner, with intent to annoy or alarm the other;

(2)  threatening the other, by telephone or in writing, to take unlawful action against any person, intending by this action to annoy or alarm the other;

(3)  placing a telephone call, anonymously, at an unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication with the intent to annoy or alarm the other;

(4)  intentionally, knowingly, or recklessly causing bodily injury to the other or to a child of either party;

(5)  threatening the other or a child of either party with imminent bodily injury;

(6)  intentionally, knowingly, or recklessly destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of the parties or either party with intent to obstruct the authority of the court to 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;

(7)  intentionally falsifying a writing or record relating to the property of either party;

(8)  intentionally misrepresenting or refusing to disclose to the other party or to the court, on proper request, the existence, amount, or location of any property of the parties or either party;

(9)  intentionally or knowingly damaging or destroying the tangible property of the parties or either party; or

(10)  intentionally or knowingly tampering with the tangible property of the parties or either party and causing pecuniary loss or substantial inconvenience to the other.

(b)  A temporary restraining order under this subchapter may not include a provision:

(1)  the subject of which is a requirement, appointment, award, or other order listed in Section 886A, Texas Probate Code; or

(2)  that:

(A)  excludes a spouse from occupancy of the residence where that spouse is living except as provided in a protective order made in accordance with Title 4;

(B)  prohibits a party from spending funds for reasonable and necessary living expenses; or

(C)  prohibits a party from engaging in acts reasonable and necessary to conduct that party's usual business and occupation.

Sec. 6.502.  TEMPORARY INJUNCTION AND OTHER TEMPORARY ORDERS. While a suit for dissolution of a marriage is pending and on the motion of a party or on the court's own motion after notice and hearing, the court may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties as deemed necessary and equitable and including an order directed to one or both parties:

(1)  requiring a sworn inventory and appraisement of the real and personal property owned or claimed by the parties and specifying the form, manner, and substance of the inventory and appraisal and list of debts and liabilities;

(2)  requiring payments to be made for the support of either spouse;

(3)  requiring the production of books, papers, documents, and tangible things by a party;

(4)  ordering payment of reasonable attorney's fees and expenses;

(5)  appointing a receiver for the preservation and protection of the property of the parties;

(6)  awarding one spouse exclusive occupancy of the residence during the pendency of the case;

(7)  prohibiting the parties, or either party, from spending funds beyond an amount the court determines to be for reasonable and necessary living expenses;

(8)  awarding one spouse exclusive control of a party's usual business or occupation; or

(9)  prohibiting an act described by Section 6.501(a).

Sec. 6.503.  AFFIDAVIT, VERIFIED PLEADING, AND BOND NOT REQUIRED. (a)  A temporary restraining order or temporary injunction under this subchapter:

(1)  may be granted without an affidavit or a verified pleading stating specific facts showing that immediate and irreparable injury, loss, or damage will result before notice can be served and a hearing can be held; and

(2)  need not:

(A)  define the injury or state why it is irreparable;

(B)  state why the order was granted without notice; or

(C)  include an order setting the suit for trial on the merits with respect to the ultimate relief sought.

(b)  In a suit for dissolution of a marriage, the court may dispense with the issuance of a bond between the spouses in connection with temporary orders for the protection of the parties and their property.

Sec. 6.504.  PROTECTIVE ORDERS. On the motion of a party to a suit for dissolution of a marriage, the court may render a protective order as provided by Chapter 71.

Sec. 6.505.  COUNSELING. (a)  While a divorce suit is pending, the court may direct the parties to counsel with a person named by the court.

(b)  The person named by the court to counsel the parties shall submit a written report to the court and to the parties before the final hearing. In the report, the counselor shall give only an opinion as to whether there exists a reasonable expectation of reconciliation of the parties and, if so, whether further counseling would be beneficial. The sole purpose of the report is to aid the court in determining whether the suit for divorce should be continued pending further counseling.

(c)  A copy of the report shall be furnished to each party.

(d)  If the court believes that there is a reasonable expectation of the parties' reconciliation, the court may by written order continue the proceedings and direct the parties to a person named by the court for further counseling for a period fixed by the court not to exceed 60 days, subject to any terms, conditions, and limitations the court considers desirable. In ordering counseling, the court shall consider the circumstances of the parties, including the needs of the parties' family and the availability of counseling services. At the expiration of the period specified by the court, the counselor to whom the parties were directed shall report to the court whether the parties have complied with the court's order. Thereafter, the court shall proceed as in a divorce suit generally.

Sec. 6.506.  CONTEMPT. The violation of a temporary restraining order, temporary injunction, or other temporary order issued under this subchapter is punishable as contempt.

Sec. 6.507.  INTERLOCUTORY APPEAL. An order under this subchapter, except an order appointing a receiver, is not subject to interlocutory appeal.

[Sections 6.508-6.600 reserved for expansion]

SUBCHAPTER G. ALTERNATIVE DISPUTE RESOLUTION

Sec. 6.601.  ARBITRATION PROCEDURES. (a)  On written agreement of the parties, the court may refer a suit for dissolution of a marriage to arbitration. The agreement must state whether the arbitration is binding or nonbinding.

(b)  If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator's award.

Sec. 6.602.  MEDIATION PROCEDURES. (a)  On the written agreement of the parties or on the court's own motion, the court may refer a suit for dissolution of a marriage to mediation.

(b)  A mediated settlement agreement is binding on the parties if the agreement:

(1)  provides in a separate paragraph that the agreement is not subject to revocation;

(2)  is signed by each party to the agreement; and

(3)  is signed by the party's attorney, if any, who is present at the time the agreement is signed.

(c)  If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

[Sections 6.603-6.700 reserved for expansion]

SUBCHAPTER H. TRIAL AND APPEAL

Sec. 6.701.  FAILURE TO ANSWER. In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer.

Sec. 6.702.  WAITING PERIOD. (a)  The court may not grant a divorce before the 60th day after the date the suit was filed. A decree rendered in violation of this subsection is not subject to collateral attack.

(b)  A waiting period is not required before a court may grant an annulment or declare a marriage void other than as required in civil cases generally.

Sec. 6.703.  JURY. In a suit for dissolution of a marriage, either party may demand a jury trial unless the action is a suit to annul an underage marriage under Section 6.101 or 6.102.

Sec. 6.704.  TESTIMONY OF HUSBAND OR WIFE. (a)  In a suit for dissolution of a marriage, the husband and wife are competent witnesses for and against each other. A spouse may not be compelled to testify as to a matter that will incriminate the spouse.

(b)  If the husband or wife testifies, the court or jury trying the case shall determine the credibility of the witness and the weight to be given the witness's testimony.

Sec. 6.705.  TESTIMONY BY MARRIAGE COUNSELOR. (a)  The report by the person named by the court to counsel the parties to a suit for divorce may not be admitted as evidence in the suit.

(b)  The person named by the court to counsel the parties is not competent to testify in any suit involving the parties or their children.

(c)  The files, records, and other work products of the counselor are privileged and confidential for all purposes and may not be admitted as evidence in any suit involving the parties or their children.

Sec. 6.706.  CHANGE OF NAME. (a)  In a decree of divorce or annulment, the court shall change the name of a party specifically requesting the change to a name previously used by the party unless the court states in the decree a reason for denying the change of name.

(b)  The court may not deny a change of name solely to keep the last name of family members the same.

(c)  A change of name does not release a person from liability incurred by the person under a previous name or defeat a right the person held under a previous name.

(d)  A person whose name is changed under this section may apply for a change of name certificate from the clerk of the court as provided by Section 45.106.

Sec. 6.707.  TRANSFERS AND DEBTS PENDING DECREE. (a)  A transfer of real or personal community property or a debt incurred by a spouse while a suit for divorce or annulment is pending that subjects the other spouse or the community property to liability is void with respect to the other spouse if the transfer was made or the debt incurred with the intent to injure the rights of the other spouse.

(b)  A transfer or debt is not void if the person dealing with the transferor or debtor spouse did not have notice of the intent to injure the rights of the other spouse.

(c)  The spouse seeking to void a transfer or debt incurred while a suit for divorce or annulment is pending has the burden of proving that the person dealing with the transferor or debtor spouse had notice of the intent to injure the rights of the spouse seeking to void the transaction.

Sec. 6.708.  COSTS. (a)  In a suit for dissolution of a marriage, the court as it considers reasonable may award costs to a party. Costs may not be adjudged against a party against whom a divorce is granted for confinement in a mental hospital under Section 6.007.

(b)  The expenses of counseling may be taxed as costs against either or both parties.

Sec. 6.709.  TEMPORARY ORDERS DURING APPEAL. (a)  Not later than the 30th day after the date an appeal is perfected, on the motion of a party or on the court's own motion, after notice and hearing, the trial court may render a temporary order necessary for the preservation of the property and for the protection of the parties during the appeal, including an order to:

(1)  require the support of either spouse;

(2)  require the payment of reasonable attorney's fees and expenses;

(3)  appoint a receiver for the preservation and protection of the property of the parties; or

(4)  award one spouse exclusive occupancy of the parties' residence pending the appeal.

(b)  The trial court retains jurisdiction to enforce a temporary order under this section unless the appellate court, on a proper showing, supersedes the trial court's order.

[Sections 6.710-6.800 reserved for expansion]

SUBCHAPTER I. REMARRIAGE

Sec. 6.801.  REMARRIAGE. (a)  Except as otherwise provided by this subchapter, neither party to a divorce may marry a third party before the 31st day after the date the divorce is decreed.

(b)  The former spouses may marry each other at any time.

Sec. 6.802.  WAIVER OF PROHIBITION AGAINST REMARRIAGE. For good cause shown the court may waive the prohibition against remarriage provided by this subchapter as to either or both spouses if a record of the proceedings is made and preserved or if findings of fact and conclusions of law are filed by the court.

CHAPTER 7. AWARD OF MARITAL PROPERTY

Sec. 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.

Sec. 7.002.  DIVISION OF PROPERTY UNDER SPECIAL CIRCUMSTANCES. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

CHAPTER 8. MAINTENANCE

Sec. 8.001.  DEFINITION. In this chapter, "maintenance" means an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.

Sec. 8.002. ELIGIBILITY FOR MAINTENANCE. 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 Chapter 71 and the offense occurred:

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

(B)  while the suit is pending; or

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

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

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

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

Sec. 8.003.  FACTORS IN DETERMINING MAINTENANCE. A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including:

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

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

(3)  the duration of the marriage;

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

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

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

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

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

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

(10)  the contribution of a spouse as homemaker;

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

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

Sec. 8.004. PRESUMPTION. (a)  Except as provided by Subsection (b), it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in:

(1)  seeking suitable employment; or

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

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

Sec. 8.005. DURATION OF MAINTENANCE ORDER. (a)  Except as provided by Subsection (b), a court:

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

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

(A)  physical or mental disability;

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

(C)  another compelling impediment to gainful employment.

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

Sec. 8.006. AMOUNT OF MAINTENANCE. (a)  A court may not order maintenance that requires a spouse to pay monthly more than the lesser of:

(1)  $2,500; or

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

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

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

Sec. 8.007. TERMINATION. (a)  The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the party receiving maintenance.

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

Sec. 8.008. MODIFICATION OF MAINTENANCE ORDER. (a)  The amount of maintenance specified in a court order or the portion of a decree that provides for the support of a former spouse may be reduced by the filing of a motion in the court that originally rendered the order. A party affected by the order or the portion of the decree to be modified may file the motion.

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

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

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

Sec. 8.009. ENFORCEMENT OF MAINTENANCE ORDER. (a)  The court may enforce by contempt the court's maintenance order or an agreement for the payment of maintenance voluntarily entered into between the parties and approved by the court.

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

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

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

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

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

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

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

Sec. 8.010. PUTATIVE SPOUSE. In a suit to declare a marriage void, a putative spouse who did not have knowledge of an existing impediment to a valid marriage may be awarded maintenance if otherwise qualified to receive maintenance under this chapter.

Sec. 8.011. UNMARRIED COHABITANTS. An order for maintenance is not authorized between unmarried cohabitants under any circumstances.

CHAPTER 9. POST-DECREE PROCEEDINGS

SUBCHAPTER A. SUIT TO ENFORCE DECREE

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 9.013.  COSTS. The court may award costs in a proceeding to enforce a property division under this subchapter as in other civil cases.

Sec. 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.

[Sections 9.015-9.100 reserved for expansion]

SUBCHAPTER B. POST-DECREE QUALIFIED DOMESTIC RELATIONS ORDER

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

[Sections 9.106-9.200 reserved for expansion]

SUBCHAPTER C. POST-DECREE DIVISION OF PROPERTY

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

[Sections 9.206-9.300 reserved for expansion]

SUBCHAPTER D. DISPOSITION OF UNDIVIDED BENEFICIAL INTEREST

Sec. 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.

Sec. 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.

SECTION 2.  Subpart D, Part 5, Chapter XIII, Texas Probate Code, is amended by adding Sections 886 through 886F to read as follows:

Sec. 886.  APPOINTMENT OF RECEIVER. (a)  If any of the separate property of a person reported to be a prisoner of war or missing in action by the United States Department of Defense appears to be in danger of injury, loss, or waste and in need of a representative, a district judge of the county in which the person reported to be a prisoner of war or missing in action or the spouse of the person resides or where the endangered separate property is located may by order, with or without application, appoint a suitable person as receiver to take charge of the endangered separate property.

(b)  The order must include a requirement that the receiver post bond as in ordinary receiverships in a sum the judge considers necessary to protect the separate property and shall specify the duties and powers of the receiver as the judge considers necessary for the protection, conservation, and preservation of the separate property.

(c)  The clerk shall enter the order in the minutes of the court, and the person appointed shall post bond for submission to the judge for approval. On approval by the judge, the bond shall be filed with the clerk.

(d)  The receiver shall take charge of the endangered separate property under the duties and powers provided by the order of appointment and by subsequent orders as the judge shall make.

Sec. 886A.  EXPENDITURES BY RECEIVER. If during the receivership under Section 886 of this code the needs of the spouse or dependent children of the person reported to be a prisoner of war or missing in action require the use of the income or corpus of the estate for education, clothing, or subsistence, the judge may, with or without application, by order entered in the minutes of the court, appropriate an amount of the income or corpus sufficient for that purpose. The income or corpus shall be used by the receiver to pay claims for education, clothing, or subsistence that are presented to the judge and approved and ordered to be paid.

Sec. 886B.  INVESTMENTS, LOANS, AND CONTRIBUTIONS BY RECEIVER. If during the receivership under Section 886 of this code the receiver has on hand an amount of money belonging to the person reported to be a prisoner of war or missing in action in excess of the amount needed for current necessities and expenses, the receiver may, under direction of the judge, invest, lend, or contribute all or a part of the excess money in the manner provided by this chapter for investments, loans, or contributions by guardians. The receiver shall report to the judge all transactions involving excess money in the manner that reports are required of guardians.

Sec. 886C.  RECEIVER'S EXPENSES, ACCOUNT, AND COMPENSATION. (a)  All necessary expenses incurred by the receiver in administering the property may be reported monthly to the judge by a sworn statement of account, including a report of:

(1)  the receiver's acts;

(2)  the condition of the property;

(3)  the status of the threatened danger to the property; and

(4)  the progress made toward abatement of the threatened danger.

(b)  If the judge is satisfied that the statement is correct and reasonable in all respects, the judge shall promptly by order approve the report and authorize the reimbursement of the receiver from the funds under the receiver's control.

(c)  For official services rendered, the receiver is entitled to be compensated in the same manner and amount as is provided by this chapter for similar services rendered by guardians of estates.

Sec. 886D.  CLOSING RECEIVERSHIP. When the threatened danger has abated and the separate property is no longer liable to injury, loss, or waste for the lack of a representative, the receiver shall:

(1)  report to the judge; and

(2)  file with the clerk a full and final sworn account of:

(A)  all property received by the receiver;

(B)  all sums paid out;

(C)  all acts performed by the receiver with respect to the property; and

(D)  all property remaining in the receiver's control.

Sec. 886E.  ACTION OF JUDGE. (a)  If on hearing the report and account the judge is satisfied that the danger of injury, loss, or waste has abated and that the report and account are correct, the judge shall render an order so finding and shall direct the receiver to deliver the property to the person from whom the receiver took possession as receiver, to the person who was reported to be a prisoner of war or missing in action, or to another person the judge finds to be entitled to possession of the estate. The person to whom the property is delivered shall execute and file with the clerk an appropriate receipt for the property delivered.

(b)  The order of the judge shall discharge the receiver and the receiver's sureties.

(c)  If the judge is not satisfied that the danger has abated, or is not satisfied with the report and account, the judge shall render an order continuing the receivership in effect until the judge is so satisfied.

Sec. 886F.  RECORDATION OF PROCEEDINGS. All orders, bonds, reports, accounts, and notices in the receivership proceedings shall be recorded in the minutes of the court.

SECTION 3.  Title 1, Family Code, as that title existed before the effective date of this Act, is repealed.

SECTION 4.  The change in law made by this Act does not affect a proceeding under the Family Code pending on the effective date of this Act. A proceeding pending on the effective date of this Act is governed by the law in effect at the time the proceeding was commenced, and the former law is continued in effect for that purpose.

SECTION 5.  The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted.


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Copyright © 1997 by Glenn M. Karisch. This page was last revised on June 26, 1997.