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9 Cards in this Set

  • Front
  • Back
Just and Right Division

- equitable
- applies only to CP and quasi-CP
Divorce can't divest separate title of one spouse and award it to other spouse. The only power court has is to set aside for support of minor children of the marriage.
** To determine whether court acted w/in discretion, look at:

age; relative physical conditions of parties; abilities; earning power and business opportunities; education; need for future support; size of community estate; size of each party's separate estate (can't be divided tho!); length of marriage; children of marriage; child care responsibilities; benefits innocent spouse would have received from continuation of marriage; fault in break up of marriage
Statutory factor: tax considerations as to specific assets
Community liabilities: subject to just and right division

Wide latitude given to trial court. Decision reversed only if division so disproportionate as to be manifestly unjust and an abuse.
No-Fault divorce a factor?

Argue both. SC has held fault can be considered where divorce was granted on a fault basis (cruel treatment). BUT Philips in Tex. App. said in no-fault divorce, evidence of fault irrelevant.
Later-discovered CP not partitioned at divorce is subject to a just and right division in separate action. [secreted/hidden/forgotten]

2 yr SOL (after other party in possession of asset repudiates claim of community ownership)
Statutory spousal maintenance:

Married for at least 10 years unless other spouse convicted of family violence w/in last 2; spouse must lack sufficient property including property distributed to the spouse under TX Family Code to provide for her minimum needs; and spouse seeking maintenance must 1) be unable to support herself bc of a disability, or be custodian of a disabled minor or adult child, or lack employment skills to provide for her minimum reasonable needs
Max award is lesser of $2500/mo or 20% of spouse's avg monthly gross income

Payments limited to shortest period that will enable spouse to obtain appropriate employment or develop employable skill

Can't cont. for >36 mos (unless spouse disabled at time of divorce or custodian of child of any age w/disability)
Factors to consider in making limited spousal maintenace award:

- if property distributed under code, including division upon divorce, is enough to provide for minimum needs
- lack of employment history and employment skills, phys/mental cond, contrib as homemaker and to spouse's earning ability; other's ability to meet support oblig and pers needs
Can be modified down (NOT up) upon showing circumstances of either has materially and substantially changed

Award terminates on death or either party OR if spouse remarries/cohabitates with another person on a conjugal basis

TX has no alimony, only:
1) Temporary support: until a final decree is entered
2) Contractual alimony: if parties enter property settlement that includes periodic payments to a spouse
3) Periodic payments IF referable to property not easily divided
Insurance policy- divorce terminates former spouse's rights as beneficiary. Unless renamed after divorce or decree names as beneficiary.

"Divorce revokes" statute n/a if policy is part of qualified pension plan governed by ERISA (Employee Retirement Income Security Act of 1974). Then, fed preemption overrides state divorce rule.
If policy was CP and not mentioned in divorce action --> H and W become tenants in common; 1/2 each. This is common property. "Divorce revokes" rule only applies to one-half.
Good will of a professional practice is not property (for divorce). Must be separate and apart from person, and have commercial value to be divided. (ex: solo pract accountant)
Compare professional corporation: practice incorporated and there are shares of stock. Shares are property and subject to "just and right" division even if the value includes good will.
Professional education degree is not property that can be divided upon divorce. To do so would result in award of post-divorce earnings (i.e., award separate property).
Also, no rise to claim for reimbursement. Expenditures weren't on property.
To own CP, requires legal marriage.

Bigamy:
Putative spouse: unaware of other's marriage -->putative marriage (partnership). Gets 1/2 (only $ acquired during putative marriage), while proper H/W shares other 1/2
If aware of preexisting marriage, relationship is meritricious. CP remains between H/W

If other W dies/divorces, pre-existing impediment removed and all future acquisitions are CP.