Family Law: Marriage; Divorce

Front 1

Ceremonial Marriage: if no marriage license, marriage must be established by proof (elements of ceremonial marriage).

*Validity of a marriage unaffected by lack of authority of person conducting ceremony if:

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

Back 1

* Encouraged to attend premarital course, but not required.

* No required form of a marriage ceremony.

Front 2

Void and Voidable Marriages

Marriage is VOID only if:
1) Bigamy: 1 already married (present marriage ok if impediment removed)
2) Consanguinity: marriage w/in prohibited relationship
3) Either party to marriage is under 16 (unless court order)

Back 2

Cosanguinity includes:

1. ascendants/descendants by blood or marriage
2. first-line collaterals
3. uncles and aunts
4. current or former stepchild/stepparent
5. first cousins can't be issued license; but marriage not void

Front 3

Annulment Grounds

- underage
- concealed divroce w/in 30 days of marriage (annul w/in year)
- impotency
- incompetency
- fraud, duress, force
- marriage under influence (booze or drugs)

* NO cohabitation after facts discovered, fraud/force removed, drugs/booze effects off

Back 3

Marriage during 72-hour waiting period after license issued, not permitted unless:

- one of parties in Armed Forces
- 72 hour cooling off period waived by court
- applicant has completed premarital education course

To annul marriage under this ground, suit w/in 30 days after marriage.

Front 4

No-fault divorce on ground of insupportability (discord/conflict that destroys legitimate ends of marriage relation and prevents any reasonable expectation of rehab)

If no-fault divorce contested, "reasonable expectation of reconciliation" might be defense- convince judge. Might just get counseling and delay.

Or, procedural delay. One party must meet 6 month (domiciled in TX) and 90 day (in county) test

Back 4

Other 6 grounds:

- cruel treatment
- adultery
- felony conviction
- abandonment over yr
- living apart for 3 years
- mental hospital over 3 years

Front 5

Annulment brought by child's next friend must be filed w/in 90 days. If action by parent/conservator/guardian, must be filed before 18th birthday.

Annulment w/in trial court discretion, considering factors. Heavy factor is pregnancy.

Back 5

* If child marries under 18 w/written parental consent, application for license must be made w/in 30 days after parental consent. Parental consent can't be stale.

Front 6

Informal Marriage: * For common law marriage, must be no impediment to marriage

Must also prove all 3:
- "agreement to be married" (that they are married, not future)
- "holding out" (held themselves to others in TX that they were married
- "cohabitation" (TX: no spec time)

Back 6

Formerly: agreement could be inferred

Current law*: 1989 statute- "agreement to be married" must be affirmatively proved by proof of agreement to be married can be by direct or circumstantial evidence.

Front 7

If action to prove CL marriage not w/in 2 years after parties separated and ceased cohabitation, presumption (rebuttable) is that parties hadn't agreed to be married

CL marriage elements: cohabitation, held self out to others they were married, agreed to be married - per declaration

Back 7

Declaration of informal marriage

Means of establishing proof of common law marriage. Same info as license app: age 18 or older; neither already married; not related w/in prohibited consanguinity; together w/elements of common law marriage

Front 8

To file divorce suit in county, one party must meet both of the tests:
6 month TX domicile and 90 days county residence

Temporary absence over holidays doesn't affect meeting requirements.

Back 8

If one spouse was TX domiciliary for at least 6 months, a spouse domiciled in another state/nation may file a suit for divorce in which the county in which the domiciliary spouse resides at the time the petition is filed- no durational county residence of 90 days.

Front 9

Divorce Venue: county of either party residence, subject to 90 day residency test

Pleadings: short, *no evidentiary facts; use language of statute otherwise allegations of facts stricken

Must state whether protective order for family violence is in effect

If minor children of the marriage, Suit Affecting Parent-Child Relationship (SAPCR) must be joined in proceeding

Back 9

Counseling: court may order parties, determine whether reasonable expectation of reconciliation, can order future counseling for additional 30 days.

Counselor can't testify and report can't come into evidence.

Front 10

[Divorce]: Court may order mediation. Settlement binding if it provides, prominently (bold/caps/underline) that agreement is not subject to revocation; signed by both parties; signed by party's attorneys present at signing.

May order parties attend a parent education and family stabilization course taught by a mental health professional or religious counselor.

Back 10

Parties and attorneys can agree in writing to use best efforts/good faith attempt to resolve dispute w/o judicial intervention except for approval. Attorneys must agree to withdraw and not act as counsel if parties don't settle.

NO negligent infliction of emotional distress in TX. Yes to intentional infliction of ED. Can't use judgment of intentional ED for basis of division of community estate AND tort. No double-dipping!

Front 11

[Divorce]

No separate tort cause for actual/constructive fraud on the community, as by allegedly depleting community estate by selling assets for less than full value.

Such conduct can only be considered in just and right division of the community.

Back 11

When divorce petition filed, petition for title of protective order can be made upon showing that party committed family violence or dating violence [act intended to result in physical harm, bodily injury, assault, sexual assault- or threat of the same]

Front 12

Protective order can prohibit party from committing family violence, communicating w/family members, stalking, going near residence or place of employment, removing child, carrying concealed weapon

2001 statute extended order to dating violence

May order respondent to complete battering intervention and prevention program, counsel, perform acts appropriate to prevent or reduce likelihood of future family violence

Back 12

Venue: where applicant resides or county in which respondent resides

Max duration: 2 years (but 1 year after order, can request det of continuing need)

Front 13

[Protective order]: Hearing and notice required. Expedited hearing (no sooner than 48 hrs, no later than 20 days after service)

Pending hearing for PO, get Temporary PO (TPO). Ex parte, no personal notice, if court finds clear and present danger of family violence again. Valid up to 20 days, can be extended 20 more upon motion.

Back 13

TPO can evict from family home if 1) file sworn affidavit giving supporting describing facts and 2) appears in person to testify.

Front 14

When divorce petition filed, petition for TRO.

Ex parte, granting det. by general test: Unreasonable acts that no reasonable person could think he or she could commit: vulgar phone calls, removing/concealing/transferring property, etc.

Also petition for temporary injunction.

After notice and hearing, TI can be granted for unreasonable acts and also reasonable acts from which person usually could do/refrain from doing unless ordered by court: award exclusive residence occupancy, ordering payment of temporary support, atty's fees or other expenses, requiring sworn inventory, etc.

Back 14

BUT no ex parte TRO for "reasonable acts"

TRO/TPO can't have temporary support. Because it's an ex parte proceeding, no personal notice has been given.

Attorney's fees can't be ordered as part of TRO or TPO, but can be as part of protective order or temporary injunction.

Front 15

Petition for name change in district court. Petition must contain current named, proposed name, reasons for change. Must find good cause.

*Can't deny change solely to keep last name of family members the same.

Back 15

Petition can be used outside of divorce situations. Request for such is made in divorce petition and change of name order is in the decree.