Family Law And Marital Property

Front 1

What are the requirements for a valid ceremonial marriage?

Back 1

A reasonable appearance of authority and at least one party acting in good faith. A valid marriage license is not required, but if there is no license the marriage must be established by proof.

Front 2

How does a common law marriage arise?

Back 2

To establish a common law marriage (informal marriage) it must be shown that the parties agreed to be married, lived together as husband and wife (cohabitation) and held themselves out to others that they were married.

Front 3

How can an already established informal marriage be proved?

Back 3

An informal marriage can be proved by executing and recording a sworn “Declaration of Informal Marriage”. It contains an attestation that both parties are 18 or older, neither is already married, and that the applicants are not related within the prohibited degree of consanguinity.

Front 4

What makes a marriage void?

Back 4

Two circumstances make a marriage void: 1) consanguinity – marriage of brother, sister, aunt, uncle, niece, or nephew and includes half-bloods. 2) Bigamy – when the other marriage is dissolved, the current marriage becomes valid by operation of law. Children of void marriages are marital children for all purposes.

Front 5

What makes a marriage voidable (5 things)?

Back 5

1) Underage – if a child is married without consent, a suit may be brought to annul. Marriage is voidable at discretion of the court.

2) Alcohol or Narcotics; Permanent Impotency; Fraud, Duress, Force – if at the time of the marriage any were present.

3) Mental Incapacity – brought by either party.

4) Concealed divorce within 30 days of marriage – if the petitioner did not know, and a reasonable person would not have known, must be brought within 1 year;

5) Marriage less than 72 hours after issuance of license – if brought within 30 days. In all but minor and 72 hour rule, a party cannot annul if they voluntarily cohabitated after the situation was discovered.

Front 6

What powers and duties arise from a marriage?

Back 6

The power of capacity is given regardless of age to all who are married. There is a duty of support – each spouse has a duty to support the other spouse and her minor children. As a result each spouse is personally liable for contracts for necessaries.

Front 7

What are the grounds for a no fault divorce and how can it be defended?

Back 7

A no fault divorce will be granted upon the ground that a marriage has become unsupportable. The only defense is a reasonable expectation of reconciliation.

Front 8

What are the grounds for a fault based divorce (6 grounds)?

Back 8

Adultery, Cruel treatment, Abandonment for more than a year, living apart for at least three years, confinement in mental hospital for at least three years, and conviction of a felony (at least 1 year imprisonment). The only defense is a denial of grounds.

Front 9

On what grounds can a spouse recover damages in a divorce?

Back 9

A spouse can recover for intentional infliction of emotional distress. In dividing the community estate, fault can be considered, but a spouse cannot recover both a disproportionate share of the estate and tort damages based on the same conduct. There is no independent cause of action in tort for damage to the community estate.

Front 10

What power does the court have to determine if there is a reasonable expectation of reconciliation?

Back 10

A court can order the parties to submit to counseling to determine if there is a reasonable expectation of reconciliation, and can order additional counseling for an additional 60 days if the court believes that there is a reasonable expectation of reconciliation. The counselor will submit a report to the court giving her opinion as to the prospects of reconciliation.

Front 11

What are the standing requirements for a divorce in Texas?

Back 11

The petitioner needs to have domiciled in Texas for the last 6 months and in the particular county for at least 90 days. A non-resident may petition in the county of appropriate venue for their spouse who meets residency requirements. A court does not need personal jurisdiction over both parties to grant a divorce.

Front 12

What are the requirements for a suit for annulment or to declare a marriage void?

Back 12

These actions may only be maintained if the parties were married in Texas or either party is a domiciliary of Texas.

Front 13

What is required for long arm jurisdiction over nonresident spouse?

Back 13

A court has personal jurisdiction over the defendant if Texas is the last marital residence of the spouses and the suit is commenced within 2 years after the date on which marital residence ended or any basis that doesn’t offend the state or federal constitution.

Front 14

What is contained in the pleadings for a divorce/annulment/suit to declare a marriage void?

Back 14

The pleadings contain allegations of the grounds relied on substantially in the language of the statute and must not contain a detailed statement of evidentiary facts. A petition must state whether a protective order for domestic violence is pending or in effect.

Front 15

What must be filed with a dissolution of marriage petition if there are minor children from the marriage?

Back 15

If the parties are parents of a minor child, the action must include a separate “suit affecting parent child relationship” SAPCR.

Front 16

What restrictions are there on transfers and debts while a divorce is pending?

Back 16

After the petition for divorce a transfer of community property or the incurrence of a community obligation is void with respect to the other spouse if there is an intent to injure the rights of the other spouse, but it is not void with respect to third parties if they have no notice. Notice to third parties can be given by filing a lis pendens.

Front 17

Are jury trials available?

Back 17

Yes, but the findings are only advisory on all issues except child custody.

Front 18

Is there a waiting period for a divorce?

Back 18

Yes, 60 days but a decree entered in a shorter period is not subject to a collateral attack.

Front 19

Is there any informal procedure for an uncontested divorce?

Back 19

Yes, the parties could agree to use collaborative law procedures or mediation. For collaborative law procedures, the parties and attorneys agree in writing to use their best efforts and make a good faith attempt to resolve their dispute without judicial intervention except to have the court approve the agreement. The attorneys must agree that if the parties do not settle, the attorneys will withdraw from the case and will not serve as litigation counsel. Status report filed with court after 180 days and 1 year, after 2 years the case is dismissed or set for trial. In mediation, the agreement is binding if it so states, is signed by both parties, and their attorneys if present. A mediated settlement that meets these requirements is entitled to a judgment on the agreement.

Front 20

In divorce proceedings what can a TRO be used for?

Back 20

A TRO can be granted ex parte when there are unreasonable acts of the sort that no reasonable person could think he or she could commit such as: vulgar telephone calls with intent to annoy and alarm, threats of bodily injury, falsifying records, removing, concealing transferring property, etc… A TRO cannot be granted for reasonable acts.

Front 21

In divorce proceedings what can a temporary injunction be used for?

Back 21

After notice an hearing, a court may issue a temporary injunction barring unreasonable acts and reasonable acts that the person could ordinarily do. A temporary injunction can also be used to award one spouse exclusive use of the residence, order payment of temporary support, attorneys fees, require a sworn inventory or require the production of the books from a family business.

Front 22

When can a temporary protective order be issued?

Back 22

A TPO can be issued ex parte if the court finds clear and present danger that spouse will commit family violence again. A TPO is valid for 20 days, but can be extended for an additional 20 days. A TPO can evict spouse from family home if spouse files a sworn affidavit giving a description of the facts supporting the TPO; and spouse appears in person to testify.

Front 23

What is the presumption of paternity in context of marriage?

Back 23

A man is presumed to be the father of a child if the child is born during the marriage of the man and the child’s mother, or within 300 days after the marriage is terminated; or the man married the child’s mother after the child’s birth, and he voluntarily asserted his paternity by filing a record with the bureau of vital statistics, agreed to be named on the child’s birth certificate, or promising in a record to support child as his own.

Front 24

How can the presumption of paternity be challenged?

Back 24

Either genetic testing or a written denial of paternity coupled with a written acknowledgment of paternity by another man. Generally the challenge must be brought within 4 years, unless the court finds that the presumed father and mother did not live together or engage in intercourse during the probable time of conception and the presumed father never openly treated the child as his own.

Front 25

Can a court prevent genetic testing?

Back 25

Yes, this is called paternity by estoppel. The court may issue an order denying genetic testing and adjudicating the presumed father to be the father of the child if the court determines that the conduct of the mother or father estops that party from denying parentage, and it would be inequitable and against the best interest of the child to disprove the father-child relationship.

Front 26

What does a genetic test have to show to establish paternity?

Back 26

The test must establish at least a 99% probability that the man is the father, based on a paternity index of at least 100 to 1.

Front 27

What liability does a parent have for the torts of a child?

Back 27

A parent is liable with no dollar limit for property damage caused by child’s negligent conduct if reasonably attributable to negligent failure to exercise parental control or discipline. A parent is liable for willful or malicious conduct of a child age 12 or older; liability is limited to $25,000 per act plus court costs and attorneys fees. A parent is also liable for actual damages, up to $5,000, plus court costs and attorneys’ fees for any theft committed by the child.

Front 28

How can a 3rd party challenge the presumption of paternity of a child?

Back 28

3rd party must file an action within 4 years and submit to genetic testing.

Front 29

How is back child support handled?

Back 29

The court can order the payment of child support retroactive from the child’s birth. There is a statutory presumption that retroactive support for the previous 4 years is reasonable and in the child’s best interest. Presumption can be rebutted by a showing that the man knew or should have known that he was the father and sought to avoid establishment of a support obligation.

Front 30

When may a child be adopted?

Back 30

When both parents have died; the parent-child relationship as to each living parent has been terminated; in second marriage situation; or adoption by former stepparent. All adoptions are subject to the best interest test.

Front 31

What is required for a former stepparent adoption?

Back 31

If the child is at least two years old, the parent-child relationship has been terminated with respect to one parent, and the former stepparent has been the child’s managing conservator or has had actual care, possession, and control of the child for at least six months (if the non-terminated parent consents), or at least one year (if the non-terminated parent does not consent) they can adopt if it is the best interest of the child.

Front 32

How is an infant adoption accomplished?

Back 32

A petition to terminate the PC relationship is filed; affidavit of status of child is signed by mother after first trimester; affidavit of relinquishment of parental rights signed by mother; affidavit of waiver of interest in child is signed by father.

Front 33

What is an alleged father’s rights with respect to a proposed adoption?

Back 33

Alleged father has the right to bring a paternity suit. If he refuses to sign affidavit, his rights can be involuntarily terminated upon a showing that he didn’t respond to the process after being served, failed to file with the paternity registry within 30 days after the child’s birth, or by proof of culpable acts that are grounds for termination of PC relationship – e.g. abandonment during pregnancy.

Front 34

What grounds are sufficient for an involuntary termination of the parent child relationship (8 grounds)?

Back 34

Abandonment, abuse, neglect, imprisonment for over 2 years, culpable acts toward child or another child, failure to support child for one year, use of controlled substance, statutory test – best interest of child. Proof by clear and convincing evidence.

Front 35

What reports must be completed before an adoption can be finalized?

Back 35

A pre-adoption screening; a post-placement adoption report; a report showing adopting parent’s criminal history; and Social, Health, Education, and Genetic history (SHEG) report including any history of abuse suffered by child.

Front 36

What factors does a court consider in the appointment of a managing conservator?

Back 36

Statutory: Best interest of child, no discrimination based on gender or marital status, evidence of past domestic violence, evidence of false report of child abuse.

Common-law: Desires of child, child’s physical and emotional needs, parental ability, stability of home environment, parent’s plans and opportunities for the child, acts and omissions showing one is less-fit than other. Either party can request a jury determination which is binding on the court. Split custody is allowable but there is a strong preference to keep children together.

Front 37

When can a court allow a joint managing conservatorship?

Back 37

When the court finds it is in the child’s best interest (statutory presumption) and the child’s physical, emotional, or psychological needs will benefit; parents have shown an ability to reach shared decisions; both parents participated in child rearing.

Front 38

What are the major aspects of a joint managing conservatorship?

Back 38

Exclusive power to make certain decisions are given to one JMC the primary JMC. JMC does not require equal or nearly equal physical possession of child. The court order must establish the child’s residence, or designate which JMC has the exclusive right to determine; include provisions to minimize the disruption of child’s schooling, daily routine and association with friends; and set out rights and duties to be exercised solely by one JMC and those decisions to be exercised jointly. One party can be order to pay child support.

Front 39

How is visitation awarded?

Back 39

Visitation must be a Standard Possession Order unless parties agree otherwise. If parents live within 100 miles, non-custodial parent gets one evening per week; every other weekend; and 30 days in the summer. Non-custodial parent must pay for travel expenses related to visitation if they have resources to do so.

Front 40

What is the scope of the child support obligation?

Back 40

Court ordered child support must terminate upon child reaching 18 or graduating high-school whichever is later. It also terminates upon child’s marriage or obligor’s death; but court can order payment from estate. Obligor parent must be ordered to provide health insurance.

Front 41

What remedies are available for the enforcement of child support?

Back 41

First, there is mandatory withholding from wages. All final orders for child support must provide for mandatory withholding. The maximum amount is 50% of take-home pay. If obligor is self-employed he can be required to post bond. Other remedies include suspension of license, Child-support lien for arrearages, Levy and execution of financial assets, Contempt, or Money judgment + 6% interest.

Front 42

How can a Texas child support order be enforced outside of Texas?

Back 42

Under the Uniform Interstate Family Support Act [UIFSA] a party sends two copies of the support order (one certified) to the foreign court, together with a sworn statement of the party showing the name and address of the obligor (and if known the address of the employer). Upon registration, the order becomes an order from that state and will be enforceable by traditional means. A party could also reduce arrearages to judgment and it will be enforceable under full faith and credit. Party can also mail obligor’s employer a copy of the income withholding order. This automatically triggers withholding unless obligor contests the validity of the order. Also try their attorney general child support division.

Front 43

What remedies are available to enforce a child custody order?

Back 43

Habeus corpus, tort liability for interference with child custody, criminal liability, contempt, or bond/security.

Front 44

What does a habeas corpus action entail when used to enforce a custody order?

Back 44

The sole issue will be whether there was a valid court order awarding custody. The other parent cannot counterclaim for reconsideration of custody. Exceptions – whether custody order complied with due process, temporary order can be issued if there is a serious immediate question concerning child’s welfare; court may consider a cross motion for custody if the child has not been in the relator’s possession at any time within the past 6 months.

Front 45

When can a habeas corpus action be brought without a prior court award of custody?

Back 45

When a non-parent is withholding custody of a child.

Front 46

What are the grounds for interference with child custody and who can it be brought against?

Back 46

Action is available against non custodial parent who kidnaps the child or withholds in violation of a visitation order. Can also be brought against third parties who aid and abet (even attorney). Allows for actual and punitive damages. Must give notice by registered or certified mail of intent to file tort suit in 30 days unless custody order is complied with.

Front 47

Who has jurisdiction over a child custody dispute involving parties from multiple states?

Back 47

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) the primary test is home-state jurisdiction which is the child’s home state or the state in which child has lived for at least 6 consecutive months. But if there is a court that has made an initial child custody order that court has exclusive continuing jurisdiction until the court determines that they don’t have jurisdiction any more. When the home-state rule does not apply, a state can take jurisdiction if no other state accepts jurisdiction and there is a significant connection and substantial evidence in the state.

Front 48

How can another state’s custody order be enforced in Texas?

Back 48

Under UCCJEA, the order can be registered in Texas and enforced in the same manner as a Texas order. There is also an expedited enforcement in habeas type proceeding. Also a court can issue a warrant to take immediate possession of child on a finding that the child is imminently likely to suffer serious physical harm or be removed from the state.

Front 49

How can a child support order be modified?

Back 49

A motion to modify support order is filed in the SAPCR court. The motion must state that circumstances of child or affected party have materially and substantially changed or that 3 years have elapsed since the order was entered or last modified, and the amount of support differs from the statutory guidelines by either 20% or $100. Parents cannot agree to modify or settle a claim for arrearages without court approval.

Front 50

Can grandparents be given court ordered visitation?

Back 50

Yes, A grandparent can file a grandparent’s petition for reasonable access. Generally either the child has lived with the grandparents for 6 months or the child’s parent is not available. But, the grandparent’s rights statute may not be constitutional. US Supreme court ruled a similar statute unconstitutional. Since then a split in the Texas circuit courts has developed.

Front 51

What must a professional do if he suspects that a child is being abused?

Back 51

A professional who believes a child has been physically or mentally abused or neglected must report the information within 48 hours. The duty cannot be delegated. The identity of the person making the report is confidential, and a person who in good faith reports the abuse or neglect cannot be liable civilly or criminally. Failure to report is a misdemeanor.

Front 52

What can the state do if they suspect that a child is being abused?

Back 52

The Tex. Dept. of Protective and Regulatory Services (TDPRS) can take possession of a child without a court order upon information that would lead a person of ordinary prudence and caution to believe the child was a victim of child abuse or sexual abuse. An ex parte hearing must be within 3 days and parents must be given notice. To retain the child the TDPRS must present sufficient evidence to show a continuing danger and a reasonable likelihood that the child will be the victim of abuse in the future.

Front 53

What types of property are separate property (5 types)?

Back 53

Property owned before the marriage; acquired during the marriage by gift; partitioned community property; property acquired with separate funds; and tort recovery for personal injury (not medical or loss of earning potential)

Front 54

What types of property are community property?

Back 54

Property other than separate property acquired during marriage and income from separate property unless the spouses agree in writing that the income will be separate; income from gift property of one spouse to other; or partitioned community property.

Front 55

When is the status of property determined?

Back 55

The character of an asset is determined at the time the asset is acquired. This rule, the inception of title rule, applies to all assets but employee retirement benefits.

Front 56

What is the community presumption?

Back 56

All assets acquired during marriage are presumed to be community property. All assets acquired on credit during marriage are presumed to be acquired on community credit. All assets on hand when the issue is raised is presumed to be community. The burden on proving property is separate is on the proponent by clear and convincing evidence.

Front 57

What happens if community funds are spent on separate property or separate funds are spent on community property?

Back 57

A claim for economic contribution arises at the termination of the marriage. A multiplier is figured by dividing the amount of contribution by the equity on the date of first contribution + all contributions and is multiplied by the equity on the date of termination of marriage. Contributions/Equity+Contributions * Equity = Claim

Front 58

What is the status of property that was adversely possessed, begun before marriage and finished during marriage?

Back 58

If the spouse was a naked trespasser, the property is community. If the spouse entered under a rightful claim, the property is separate.

Front 59

What is the effect of title being taken only in one spouse’s name?

Back 59

In common law states the person that takes title is the owner. In community property states the title does not determine characterization. Rather, under the inception rule it’s the time and circumstances of the acquisition. One exception is when one spouse, using SP, takes title to an asset in other spouse’s name. The presumption in that situation is that a gift was intended.

Front 60

How are employee retirement benefit plans handled?

Back 60

The benefits accumulated during marriage are community property. Defined benefit plans are # years while married/# years total (freeze retirement benefit as of date of divorce). Defined contribution plans just subtract the value on day of marriage from current value. A deceased spouse has no interest in retirement benefits.

Front 61

How are business increases during marriage handled?

Back 61

For business owned before marriage, the increases allow a reimbursement claim if the spouse spent more time than he was fairly compensated for and more than necessary to preserve the separate estate.

Front 62

How is property divided upon divorce?

Back 62

A court will effect a just and right division of community property. The court may consider the age and physical condition of the parties, ability and earning power of the parties, needs for future support, size of the estate, benefit spouse would have received from continuation of marriage, and fault. (reviewed on manifestly unjust standard)

Front 63

How is property discovered after a divorce is settled handled?

Back 63

Later discovered CP is subject to a just and right distribution in a separate action. Statute of limitations is 2 years from the point the other party repudiated the claim of community ownership.

Front 64

How are commingled bank accounts handled?

Back 64

Community funds are presumed to be withdrawn first. Thus, the lowest intermediate balance will be considered separate property.

Front 65

When can spousal maintenance be ordered?

Back 65

If a couple is married at least 10 years, and one spouse lacks sufficient property to provide for her minimum needs. The spouse seeking support must be unable to support herself because of a disability, be a custodian of a disabled child, or lack employment skills adequate to provide for her minimum reasonable needs.

Front 66

How much money can be awarded as spousal maintenance?

Back 66

A maximum of $2500.00 a month or 20% of spouses average monthly income. No more than 36 months unless spouse is disabled.

Front 67

How is property of a bigamous marriage handled?

Back 67

If spouse is unaware of the bigamous marriage, she is called a putative spouse and the relationship is characterized as a partnership. If spouse is aware of preexisting marriage, the relationship is characterized as a meretricious relationship and the spouse gets nothing.

Front 68

What are the requirements for a premarital agreement that would alter the character of community assets?

Back 68

It must be in writing and signed by both parties, no consideration is required, parties may agree that SP remains SP, agreement can govern the disposition of property upon separation, divorce, or death. Agreement can not agree that premarital property becomes CP after marriage. Cannot limit obligation to provide child support.

Front 69

How can a premarital agreement be set aside?

Back 69

By proving that it was not signed voluntarily, or unconscionable when made and there was no fair disclosure of spouses property or obligations.

Front 70

How can premarital separate property be converted to community property?

Back 70

Spouses can agree in writing to convert SP to CP. Spouses can also agree to convert CP to SP and can even partition unequally.

Front 71

Are survivorship agreements valid for disposition of community property?

Back 71

Yes, the agreement must be in writing and signed by both spouses, either spouse can revoke with written notice to other, and a court order will be necessary to adjudicate the agreement valid (clear title)

Front 72

What power does one spouse have to challenge the community property gift of another spouse?

Back 72

One spouse can make reasonable gifts of community property as long as such gifts are not so disproportionate as to be in fraud of the spouse’s community rights.

Front 73

What effect does a divorce have on preexisting creditors?

Back 73

A divorce does not affect the rights of preexisting creditors. If only one party is personally liable because the other didn’t sign, creditor can go after community property in an in rem suit seeking to have a constructive trust placed on the property.

Front 74

What is the liability for torts committed by one spouse?

Back 74

All CP is subject to judgment for torts committed during marriage. Only sole/joint management CP is available to satisfy a premarriage tort.

Front 75

What is the liability of one spouse for contracts entered into by the other?

Back 75

Each spouse has a duty to support the other spouse and his or her minor children. Each spouse is personally liable for the other spouse’s contracts for necessaries. Other contracts where other spouse is not personally liable, creditors can only reach liable spouse’s property subject to his control.

Front 76

When can a protective order be issued?

Back 76

A protective order can be granted upon a showing that the other party has committed family or dating violence, which consists of intentional use or threat of physical harm. Venue is county where either applicant or respondent resides. Maximum duration is 2 years, but one year after it is ordered subject can request a determination of whether it is still necessary. Court can order respondent to complete a battering intervention and prevention program, counsel with a social worker, or perform acts the court determines are appropriate to prevent or reduce the likelihood of family violence in the future. Notice and hearing is required.

Front 77

When will visitation be denied?

Back 77

Only upon a showing of danger to the child’s physical or emotional health. Upon motion the court can restrict visitation.

Front 78

How can a custody order be modified?

Back 78

A motion to modify managing conservator is filed in the SAPCR court. The motion must state that modification would be in best interest of child and that circumstances have materially and substantially changed; or the child is at least 12 and has filed a document with the court indicating who she wants to live with; or the custodial parent has voluntarily relinquished the primary care and possession of the child for at least 6 months. A modification cannot be sought within 1 year of a prior determination absent special circumstances.