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40 Cards in this Set
- Front
- Back
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Requirements of Ceremonial marriage |
1. marriage license - 72 hour waiting 2. Ceremony |
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Marriage ceremony requirements |
1. no form requirement 2. officiant - a. reasonable appearance of authority b. at least one party acting in good faith 3. no residency requirement |
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Marriage is Void |
1. Bigamy 2. Consanguinity 3. under 16 without a court order |
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Procedure to void a marriage |
file suit to declare marriage void in the county where the marriage took place or, if the ceremony was outside Texas, in the county in which one party is domiciled. |
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Voidable marriage |
unwaivable - under 18 without parental consent (application must be within 30 days of consent) waivable by cohabitation -concealed divorce within 30 days of marriage (action must be brought within one year) -impotency -incompetency -fraud, duress, force -marriage under influence of alcohol, narcotics |
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voidable marriage based on 72 hour rule |
must file within 30 days |
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Informal marriage requirements |
1. no impediment 2. agree to married 3. holding out 4. cohabitation |
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Declaration of informal marriage |
1. same info as application for license 2. set out common law elements 3. can be retroactive note: waiting until 2 years after cohabitation raises presumption against intent. |
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Jurisdiction to file for divorce in Texas |
One party must 1. 6 months TX domicile 2. 90 day county resident But - if one spouse is a nonresident, that spouse can file in the county of the resident's domicile. |
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Venue for a divorce |
county of residence of either party for 90 days. |
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grounds for divorce |
1. cruel treatment 2. adultery 3. felony conviction 4. abandonment for over 1 year 5. living apart threeyears 6. mental hospital for 3 years NO FAULT |
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Misc. Divorce Procedures |
1. pleadings with allegation of grounds in language of the statute. 2. state whether PO is in effect. 3. Must join SAPCR if any 4. Court may order counseling for reasonable expectation of reconciliation 5. Mediation - binding only if the parties agree and is conspicuously noted (signed by parties and attorneys) 6. Court may order family stabilization course 7. collaborative law procedures - lawyers must agree to withdraw if not resolved in two years. |
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Tort recovery in divorce |
May not grant for NEID No separate cause of action for fraud on the comunity. |
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Grounds for protective order |
Can be issued upon showing of -family violence -dating violence act or threat. may be issued by divorce proceeding or independent. Notice and a hearing is required. |
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Effect of PO |
can prohibit 1. family violence 2. communication 3. stalking 4. going near residence or place of employment 5. removing a child 6. carrying a concealed weapon. |
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Venue of PO |
county where applicant resides or where respondent resides |
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maximum duration of a PO |
2 years, but subject can request redetermination 1 year after entered. |
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TPO |
ex parte court must find clear and present danger valid for 20 days |
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When can TPO evict from a home |
W files sworn affidavit giving description of facts, and W appears in person to testify |
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TRO |
filed with petition for divorce because of concern over disposal of property. can be issued ex parte general test - unreasonable acts of the sort that no reasonable person could think they would commit. |
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Temporary injunction |
notice and hearing required extends a TRO Can award temporary support, attorney's fees, other expenses. Requires a sworn inventory of assets |
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Can spouse set aside the sale of CP during divorce |
not unless the buyer knows the transfer was made with the intent to defeat the other's rights. |
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Name Change |
can request in the petition can file independently in district court fi divorce decree did not change name Court must find good cause but cannot deny simply to keep the name the same as the kids. |
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Paternity procedure |
venue: residence of child Jury: no Either party may challenge SOL: none if the child has no presumed, acknowledged or adjudicated father. -presumed father, within 4 years. |
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Retroactive child support |
Court may order retroactive to child's birth but presumption that 4 years is in the best interest of the child. Only rebutted if the man knew or should have known AND sought to avoid establishment of the obligation. |
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Presumptions of paternity |
1. child born during or within 300 days of marriage or attempted marriage. 2. married AND -listed on birth certificate -acknowledged in a record - promised in a record 3. during first 2 years of life, resided with child and represented to others that child was his. |
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what can rebut a presumption of paternity |
1. genetic testing, or 2. written denial by dad and written acknowledgment by mom. |
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paternity by estoppel |
1. denial against child's best interest 2. Conduct of either parent Factors: 1. length of time between notice and action filed 2. length of time father acted in that role 3. facts surrounding discovery of the possibility 4. child's age and the nature of the relationship 5. harm from disapproval. This ONLY comes up if spouses are married and father is presumed, this just denies availability of genetic testing. |
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who can be adopted |
1. both parents die
2. parent-child relationship to both is terminated 3. stepparent |
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Who may adopt |
1. married 2. single 3. if infant - must be a termination of PC relationship. |
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requirements of petition to terminate P/C relationship for adoption |
1. petition for suit to terminate - hearing after affidavits filed 2. Affidavit of relinquishment - signed by mother, even if a minor, must wait 48 hours after birth. 3. Affidavit of waiver of interest - signed by man, quitclaim deed (or involuntary termination if doesn't respond in 30 days or by culpable acts) 4. Reports by Tex DFPS. |
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Adoption reports by Tex DFPS |
1. pre-adotpion - screening of home 2. post placement 3. SHEG - social, health, education, genetic history of natural parents. must include any history of abuse by child |
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Adopting child over 12 |
child must give written consent. at adulthood, the child is entitled to a report summary (details only if requested by both parties). |
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attacking an adoption |
Validity of an adoption is not subject to direct or collateral attack more than 6 months after the decree is entered. |
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Grounds for involuntary termination of P/C relationship |
1. abandonment 2. neglect 3. imprisonment for over 2 years 4. culpable acts toward child or another child. 5. Abuse 6. Failure to support for one year 7. use of controlled substance in a manner that endangers the child. MUST ALSO BE IN CHILD'S BEST INTEREST |
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Parenting plan |
any final order in a SAPCR must include one. if the parties cannot agree, they propose one 30 days before trial. |
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appointment of Managing conservator |
custody = MC statutory factors 1. Best interest of the child 2. no discrimination on gender 3. past domestic violence 4. false reports of child abuse judicial factors 1. desires of child 2. physical/emotional needs 3. parental ability 4. stability of home 5. plans and opportunities for child. |
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Jury trial in SAPCR |
either party can get jury for custody or primary residence control 1. Court cannot JNOV jury finding on custody 2. New trial if against weight of the evidence. |
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Denial fo visitation |
court will only do this on showing of danger to physical or emotional health |
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JMC Rules |
1. presumption of JMC in best interest 2. consider proximity of homes, ability to make decisions, history of abuse, ability to reach shared decisions. |
