Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
69 Cards in this Set
- Front
- Back
|
Family Law
|
Family Law
|
|
|
What is separate property?
|
1. prop. owned by spouse before marriage or acquired by gift, devise
2. produced by partition of CP 3. purchased w/ separate funds 4. tort recovery for personal injury (not lost wages/med expenses) |
|
|
What is community property?
|
1. prop acquired by either spouse during marriage
2. income from SP unless spouses agree in writing, or from SP gifted from other spouse (donee's SP) |
|
|
What is the presumption of all marital property?
|
Presumed to be CP
|
|
|
What is the inception of title rule?
|
Character of asset is determined at the time the asset is acquired
Exceptions: - employee retirement benefits - stock options |
|
|
What happens when community funds are expended on one spouse's separate property?
|
- if paying down secured debt, community has reimbursement claim
- if spouse uses SP to pay down other spouse's SP, donor spouse has reimbursement claim |
|
|
What happens when community funds are used to build a house on separate property land?
|
The house is separate property by the doctrine of fixtures
|
|
|
When does title incept on a life insurance policy?
|
Payment of the first premium
|
|
|
What things can there no reimbursement for expending community funds?
|
1. payment of child support, alimony, spousal maintenance
2. living expenses of spouse or child 3. student loans |
|
|
What is quasi-community property?
|
Property acquired in a common law jurisdiction that would have been classified as CP if acquired in TX.
- classified as such for divorce purposes - treated the same as CP |
|
|
How will a court divide community property in a divorce?
|
The court will make a just & right division at its discretion.
|
|
|
What claim if a husband directs all his time to a separate property business?
|
H's time, toil and talent are CP
W has claim for reimbursement for: - (value of TTT expended) - (value of TTT reasonably necessary to maintain business) - (compensation received for TTT) |
|
|
What happens if separate and community funds are commingled in a bank account?
|
Lowest intermediate balance rule:
- presumption that CP comes out first - SP holder entitled to lowest balance of the account during existence |
|
|
What factors are considered in a just & right division of assets?
|
1. age; 2. physical condition of parties; 3. abilities; 4. earning power & biz opportunities; 5. education; 6. need for future support; 7. size of CP; 8. size of each party's SP; 9. length of marriage; 10. children of marriage; 11. child care; 12. benefit spouse would receive from cont. of marriage; 13. fault
|
|
|
What is the standard of review for a just & right division of assets in divorce by a trial court?
|
- Will be reversed only if so disproportionate to "manifestly unjust" and "abuse of discretion"
- Appeals court can only remand, can't divide - Only a trial court can divide |
|
|
When can a spouse get maintenance?
|
1. couple must have been married for 10 years (absent family violence w/in 2 years)
2. spouse must lack sufficient property to provide for minimum needs 3. must be unable to support due to disability or be custodian of disabled child or lack employment skills Max award is lesser of $2500or 25% monthly income Max time is until employable skill or 36 months |
|
|
Is alimony available in TX?
|
No, unless:
1. temporary support while divorce pending 2. K alimony 3. in rem periodic payments for property not easily dividable |
|
|
What things are not divided on divorce?
|
1. Good will
2. Professional degree (no contribution even if spouse paid for it) |
|
|
How are animals born of SP animals in marriage classified?
|
Community property
|
|
|
How is income from an SP oil & gas lease classified?
|
1. bonus payments = SP
2. delay rentals = CP 3. royalty payments = SP |
|
|
What can a premarital agreement do?
|
1. make income from SP remain SP
2. govern disp of property on sep, divorce or death 3. make salary and wages SP 4. waive spousal maintenance or support at divorce CANNOT: 1. limit child support 2. turn SP in to CP (only after marriage) |
|
|
What must be shown to set aside a pre marital agreement?
|
1. wasn't signed voluntarily (very high standard)
2. unconcionable when made AND (a. no disclosure of H's property b. right to disclosure not waived in writing and c. W had no adequate knowledge of H's property) |
|
|
How is a community property survivorship agreement effective?
|
1. signed by both spouses
2. either spouse can revoke |
|
|
What are the factors considered when determining if a gift of CP is a fraud on the community?
|
1. relationship of donee to donor spouse
2. amount of gift in relation to community estate 3. special circumstances that justify 4. spouse adequately provided for out of remaining CP 5. was gift donor's sole mgmt CP |
|
|
What property can be reached by tort liability?
|
All community property
1. joint managed 2. husband managed 3. wife managed Only separate property of non-guilty spouse is spared If pre-marriage, can only get to managed CP and SP of guilty spouse |
|
|
Is a spouse personally liable for a K for the other spouse's necessities?
|
Yes, due to duty to support.
- if not necessities, creditor can only reach assets over which spouse has mgmt power |
|
|
Is a marriage valid without a formal ceremony?
|
Yes, must only be:
1. reasonable appearance of authority 2. at least one party acted in good faith |
|
|
What reasons are there for a marriage being void?
|
1. bigamy
2. consanguinity 3. either party is under 16 and no court order |
|
|
What reasons are there for a marriage being voidable?
|
1. Underage (<18 and no parental consent or court order)
2. No cohabitation after marriage and any of: concealed divorce w/in 30 days, impotency, incompetence, fraud/duress/force, alcohol or drugs 3. marriage during 72 hour waiting period after license unless armed forces, court waived, or premarital course AND suit within 30 days |
|
|
What are the elements of a common law or informal marriage?
|
1. agreed to be married
2. held themselves out as married in TX 3. cohabitated in TX If action to prove CL not w/in 2 years of separation AND stopped cohabitating, presumption that parties did not agree to be married |
|
|
What are the requirements to get divorced in TX?
|
1. domiciled in TX for 6 months
2. residing in county for 90 days 3. if one spouse alien, may file suit if other spouse meets only 1) |
|
|
What is the substance of a divorce pleading?
|
short, no evidence, allegation of ground in statute language, must state whether protective order in effect
- if minor kids, SPACR must be joined |
|
|
Can the court order counseling for a divorcing couple?
|
Yes, if it finds there is a reasonable expectation of reconciliation
|
|
|
What is required in a mediation agreement?
|
1. agreement states prominently (bold, caps, etc) that it is not subejct to revocation
2. signed by both parties and 3. signed by parties' attorneys, if any, that were present |
|
|
Can a divorce court grant recovery for negligent infliction of emotional distress?
|
No, NIED is not a cause of action in TX. It can for IIED.
|
|
|
What showing is necessary for a protective order?
|
1. an act intended to result physical harm, bodily injury or sexual assault or
2. mere threat of the same |
|
|
What is required for a temporary protective order?
|
- Court finds that H is likely to commit family violence again
- valid for 20 days - can evict H from home |
|
|
What is a temporary restraining order?
|
- ex parte
- prevents party from doing unreasonable acts (vulgar phone calls, threats, transferring property, etc) |
|
|
What is a temporary injunction?
|
- notice and hearing required
- granted for unreasonable acts of TRO but also for reasonable acts |
|
|
What happens if an alleged father refuses a paternity test?
|
- found in contempt or
- default judgment of paternity |
|
|
What is required in tests to adjudicate paternity?
|
- 99% probability that man is father in genetic test
- if found, court shall issue an order that man is the father - if not, court shall issue an order that man is not the father |
|
|
What is the statute of limitations for a paternity suit?
|
- if presumed father: 4 years
- if no presumed father: no statute of limitations |
|
|
Is retroactive child support available?
|
Yes, for the 4 years prior to filing petition
|
|
|
What facts give rise to a presumption of paternity?
|
1. child born during marriage or within 300 days after (can be attempted marriage (void or voidable)) OR
2. man married (or attempted) the mother AND ack'd paternity in filed record or promise in record to support child or was voluntarily named as father on birth certificate 3. man resided with child for 2 years and rep'd to others |
|
|
How can a presumption of paternity be defeated?
|
1. genetic test results
2. written denial of paterntiy coupled with written ack of paternity by another man |
|
|
What causes of paternity by estoppel?
|
1. conduct of mother or father estops
2. against kids best interest to disprove father-child relationship |
|
|
What factors to consider in paternity by estoppel?
|
1. length of time b/t finding out and filing action
2. length of time acting as father 3. facts surrounding father's discovery of non-paternity 4. child's age 5. nature of relationship between kid/dad 6. harm that may result to child |
|
|
When can a child be adopted?
|
1. both parents have died
2. second marriage - stepparent wants to adopt child 3. PCR of each living parent terminated 4. child at least 2, PCR of other parent terminated, stepparent wants to adopt |
|
|
When can suit to terminate the PCR be filed?
|
Before birth, but cannot be completed until after birth
|
|
|
When can a father's rights be terminated pending an adoption?
|
1. doesn't response alleging paternity
2. failing to file in paternity registry w/in 30 days 3. proof of culpable acts that are ground for terminating PCR |
|
|
What reports are necessary for an adoption to be finalised?
|
1. pre-adoptive social study
2. post-adoptive social study 3. report showing criminal history of adoptive parents 4. social health education and genetics history report (SHEG report) also includes history of abuse |
|
|
What are the roles in child custody?
|
- Managing conservator: spouse awarded custody of child
- Possessory conservator: spouse awarded visiting rights - If over 12, child can choose (court can veto) - best interest of child always trumps |
|
|
What is a standard possession order for child custody?
|
- non-custodial parent gets 6pm to 8pm thurs, and 6pm fri to 6pm sun 1, 3, 5 weekends of month
- 30 days in the summer |
|
|
Can visitation be contingent on paying child support?
|
NO
|
|
|
What are the amounts of child support?
|
- 1 child - 20% of net resources
- 2 children - 25% - 3 children - 30% - 4 children - 35% - 5+ children - 40% Guidelines apply only to first $7500 per month |
|
|
How is child support enforced?
|
1. withholding of wages
2. suspension of licenses 3. child support lien for arrearages against real property (not homestead) 4. levy and execution on financial assets (basically freezes assets) 5. contempt 6. money judgment |
|
|
How can out of state child support orders being enforced in TX?
|
Can convert order via UIFSA:
1. send two copies to TX court with sworn statement showing name and address of H 2. order becomes a TX order |
|
|
What are the possible mechanism for enforcing a child custody order?
|
1. habeas corpus
2. tort liability for parental "kidnapping" 3. contempt of court |
|
|
What is the purpose of a habeas corpus proceeding?
|
To return possession of child to the person entitled to it under a custody order
Must be ordered unless: 1) immediate serious question of child welfare 2) relator has relinquished possession of child for 6 months |
|
|
What damages in a tort caes for parental kidnapping?
|
1. actual damages, including costs of locating, attorneys fees, mental anguish
2. exemplary damages if D acted with malic or intent to cause harm |
|
|
What is the primary test for jurisdiction in child custody cases?
|
1. child's home state (lived there for 6 consec. months)
2. child's home state w/in 6 months but child absent, but parent continues to live in the state |
|
|
When does the home state jurisdiction rule not apply?
|
No other state has or accepts home state jurisdiction AND:
1. child and at least one parent have significant connection to state and 2. substantial evidence conerning child exists in the state |
|
|
What are the grounds for modification of a conservatorship?
|
Modification in best interest of kid and:
1. circumstances have "materially and substantially" changed since order issued 2. child is 12 and files person he prefers as conservator OR 3. conservator voluntarily relinquishes control for 6 months |
|
|
What are grounds for modifying a child support order?
|
1. circumstances have "materially or substantially" changed or
2. 3 years elapsed and support deviates from guidelines by greater of 20% or $100 |
|
|
Can grandparents petition for reasonable access to child?
|
Yes, if parent who is their child is:
1. dead 2. incompetent 3. has been in jail during preceeding 3 months OR 4. parent does not have actual or court ordered access to child |
|
|
Can the TXDFPS take possession of a child without a court order?
|
Yes, if info that would lead a person of ordinary prudence and caution to believe that child was victim of child or sexual abuse, and no time for TRO
|
|
|
What must TDFPS do after removing a child for suspicion of sex abuse or child abuse?
|
1. Must file a SAPCR (w/ appointment of attorney ad litem for kid)
2. ex parte hearing w/in 3 working days 3. parents must be given notice prior to ex parte hearing explaining why kids removed and summary of legal rights 4. full advisory hearing w/in 14 days |
|
|
What must the TXDFPS do to retain child after removing for sex/child abuse?
|
Must show sufficient to satisfy person of ordinary prudence and caution that:
1. there is a continuing danger to child's phys health or safety due to parents' act or failure to act 2. reasonable likelihood that kid will be a victim of abuse in the future |
|
|
What is a parent's liability for child's tortious conduct?
|
1. negligence: parent is liable for property damage caused by child's negligence if conduct attributed to parent's failure to exercise duty of control and reas. discipline
2. theft: $15k max until 18 3. intentional tort: $25k per act if willfuil and malicious (no need to show parental neglect) |
