Family Law

Front 1

Community Property: What are some examples of either spouse's separate property

Back 1

1) Property owned by either spouse before marriage, 2)property acquired by gift, will, or inheritance, 3) separate property can be produced by a written partition or exchange of community property through pre or post marital agreements, 4) tort recovery for personal injury is separate (but not tort recovery for earnings or med exps)

Front 2

All assets on hand whenever the issue is raised (divorce, creditor's claims) are presumptively community property. Who has the burden and what is the burden for proving an asset is separate property.

Back 2

The burden for proving an asset is separate property is on the party so contending. The community presumption must be overcome by clear and convincing evidence.

Front 3

What is the fundamental rule regarding characterization of assets to determine if they are Separate or Community Property?

Back 3

Inception of Title is the fundamental rule governing characterization of assets. The character of an asset is determined at the time it is acquired. It does not matter how title is taken, only when title is taken. *Exception: employee retirement benefits and stock options.

Front 4

What is the rule with regards to community property and commingled bank accounts?

Back 4

The "community out first rule" also known as the lowest intermediate balance rule: when SP and CP funds are commingled in a bank account it is presumed that CP is used first and SP funds sink to the bottom.

Front 5

Explain the division of property on divorce

Back 5

A trial judge's determination regarding division of property upon divorce is given wide latitude and needs to be "Just and Right." A decision will only be reversed if division is so disproportionate as to be manifestly unjust and an abuse of descretion.

Front 6

What are the requirements to be eligible for Spousal Maintenance?

Back 6

A couple must have: 1) been married for at least 10 yrs, unless the other spouse convicted of DV w/i last 2 years; 2) spouse must lack sufficient property to provide for minimum needs, and 3) must either be unable to support self due to disability, lack of employment skills, or be a custodian of a disabled minor or adult child.

Front 7

What are some factors considered in making a just and right division of the marital property.

Back 7

Age, physical condition of parties, abilities, earning power and business opportunities, education, need for future support, size of community estate, size of each party's separate estate, length of marriage, children of the marriage, benefits the innocent spouse would have rec'd from continued marriage, fault in breaking up marriage.

Front 8

What is the maximum award if the court does award spousal maintenance.

Back 8

The max is the lesser of $2500 per month or 20% of spouse's average monthly gross income for a maximum of 36 months. The award can be adjusted downward but not upward.

Front 9

What are three types of agreements that can alter the character of marial assets.

Back 9

1) Premarital Agreements: must be in writing and signed, no consideration req. 2) Marital Agreements: spouses can agree in writing to convert SP into CP; 3) Community Property Survivorship Agreements: must be in writing and signed by both, either spouse may revoke by written notice to other, court adjudication req.

Front 10

Explain the power to challenge gifts of community property.

Back 10

Fraud on the spouse's community share - one spouse can make reasonable gifts of community property as long as not disproportionate as to be in fraud of other spouse's rights. Example: giving mistress expensive jewelry.

Front 11

What is a spouse's liability for the torts of the other spouse

Back 11

All community property is subject to tort liability of either spouse; the only thing protected is the other spouse's separate property.

Front 12

What is a spouse's contractual liability for the other spouse's contracts.

Back 12

Under the Family Code, each spouse has the duty to support the other spouse and his or her minor children. Accordingly each spouse is liable for other spouse's contracts for necessities.

Front 13

Under what circumstances is the validity of a marriage not effected by the lack of authority of the person conducting the ceremony?

Back 13

1) There was a reasonable appearance of authority by that person; 2) At least one party to the marriage acted in good faith and treats the marriage as valid; 3) Neither party to the marriage is a minor.

Front 14

A marriage can be void only if one of 3 situations exist, what are they?

Back 14

1) Bigamy
2) Consanguinity
3) Either party is under age 16 unless court order obtained.

Front 15

What are the three elements that must be proven to establish a common law/informal marriage

Back 15

1) Agreement to be married
2) Holding out to others in Texas as married
3) Co-habitation in Texas

Front 16

What are the residency requirements to file for divorce in Texas?

Back 16

To file for divorce in TX one of the parties must meet both of the following: 6 months TX domicile and 90 days county residence.

Front 17

What are the factors the court considers in determining paternity by estoppel.

Back 17

Length of time between date paternity action filed and date presumed father put on notice he might not be father, length of time presumed father assumed role of father, facts surrounding discovery of possible non-paternity, child's age and relationship w/ presumed father; and possible harm if presumed paternity disapproved.

Front 18

A child may be adopted and a person may adopt if:

Back 18

Parent-child relationship as to each living parent has been term'd or suit for termination joined w/adoption. Both parents dead; 2nd marriage situation where step-parent wants to adopt; child at least 2 yrs and parent-child relationship term'd w/respect to one parent.

Front 19

What is the statutory test to determine who is granted custody as the managing conservator of the child.

Back 19

The court considers the best interest of the child and evidence of past DV or evidence of false report of child abuse.

Front 20

What are the positive facts the court has developed to consider who is granted custody as the managing conservator of the child.

Back 20

1) desires of the child, 2) child's physical and emotional needs, 3) parental ability, 4) stability of home environment, 5) parent's plans; 6) opportunities for the child; and 7) excuses for any acts or omissions.

Front 21

What are the negative factors the court considers in determining who is granted custody as managing conservator?

Back 21

1) intentional use of force against spouse, child's other parent, or any child w/i preceding two yrs; and 2) Acts or omissions showing that one parent is more fit than the other.

Front 22

There is a rebuttable presumption that a joint managing conservatorship is in the child's best interest. What are some elements the court looks at?

Back 22

1) child's physical, psychological, or emotional needs will benefit; 2) parents have shown ability to reach shared decisions; 3) parents can encourage/accept positive relationship w/other parent; 4) both parents participated in child rearing before; 5) Geographic proximity; 6) child's preference; 7) no evidence or hx of abuse.

Front 23

A final order in a SAPCR tied to a dissolution proceeding must incorporate a parenting plan that....

Back 23

1) sets out rights and duties of each parent; 2) provides for periods of possession and access; 3) provides for child support; 4) optimizes development of close and cont. relationship between each parent and the child.

Front 24

What are the statutory child support guidelines?

Back 24

1 child = 20% of obligor's net
2 children = 25%
3 children = 30%
4 children = 35%
5 children = 40% max.

Front 25

The statutory child support guidelines are a starting point which can be increased or reduced taking into account many factors such as...

Back 25

1) specific needs of the child; 2) ability of the parents to contribute to support; 3) any financial resources available for support of the child; 4) amount of possession and access to child

Front 26

What are the different methods of enforcement of child support.

Back 26

All final orders must provide for mandatory withholding [max 50% disposable earnings]; if obligor self-employed can be ordered to post bond; court can suspend professional license if obligor is 3 months in arrears

Front 27

How can a parent Enforce a Custody Orders

Back 27

If a parent is withholding possession in violation of custody order - file Writ of Habeas Corpus. The sole issue of the writ is if there is a valid court order awarding custody. The venue is the county where child found or court of cont. jurisdiction.

Front 28

Explain the UCCJEA

Back 28

The purpose of the Uniform Child Custody Jurisdiction Enforcement Act is to avoid jurisdictional disputes and facilitate interstate enforcement of child custody and visitation orders.

Front 29

What is the test for modification of a child support or custody order.

Back 29

To modify sole managing conservatorship there is a 2-prong test: if modification is in the best interest of the child, and changed circumstance. If modification is filed w/i 1-yr of original order, parent must show: danger to child's physical or emotional health. This is to discourage repeated litigation.

Front 30

Explain parental liability for child's tortious conduct.

Back 30

A parent is liable for for property damage caused by child's negligent conduct if the conduct is attributed to the parent's negligent failure to exercise duty of control and reasonable discipline. There is no limit on liability.