Texas Family Law For Bar Exam

Front 1

if marry w/in 30 days of divorce, the marriage is:

Back 1

voidable

Front 2

elements of informal marriage (common law marriage)?

Back 2

•AGREE to be married,
•HOLDOUT as married in Texas
•COHABITATE in Texas

Front 3

re informal marriage:
There is a rebuttable presumption of no agreement to be married if separated and ceased cohabiting for __ yrs w/out filing suit.

Back 3

2

Front 4

unless special needs are set out in court order, the maximum monthly support award for one child is?

Back 4

$1,500

note for 2 children = $1,875

Front 5

child support award in excess of statutory guidelines:

Back 5

must be based on proven needs of child

Front 6

can a child support obligation be discharged in bankruptcy?

Back 6

NO, per Fed Law, neither an obligation to furnish future child support nor support arrearages are dischargeable in bankruptcy.

Front 7

once the court sets the amount of child support payments, can that amount be changed in the future?

Back 7

Yes.
-On motion, the court can modify a support order if the circumstances of the child or an affected party have materially changed.

Front 8

Before a party can file for divorce in Texas, he must be a __ of Texas for at least _ __ and must reside in the __ in which the divorce petition is filled for at least _ __.

Back 8

domiciliary; 6 months
county; 90 days

Front 9

The support obligation does not terminate on the obligor's death, and future support payments, __ to present value, are presented as a claim against the obligor's __.

Back 9

discounted; estate

Front 10

under the Family Code, all __ property is subject to the tortious liability of either spouse occurring during in the marriage.

Back 10

community

Front 11

under the Family Code, appointment of both parents as __ __ conservators is __ in the child's best interest.

Back 11

joint managing; presumptively

Front 12

if title to community property is held in one spouse's name, a third party dealing with that spouse may rely on the spouse's authority to manage and dispose of the property, UNLESS it qualifies as a ___, b/c both spouses must join in the conveyance of homestead property.

Back 12

HOMESTEAD

Front 13

B/c application of the child supper guidelines is __ to be in the best interest of the child, without evidence to the contrary it was __ for the court to deviate from the guidelines.

Back 13

presumed; error

Front 14

the Holley factors are non-exhaustive, in determining BIC, a court may also consider:
(i) domestic __;
(ii) __ report of child abuse;
(iii) intentional use of force w/in _ years against spouse, child's other parent, or any child.

Back 14

violence;
false;
2

Front 15

in a non-jury trial, the court must also interview children __ yrs or older.

Back 15

12.

*ct may interview Children under 12

Front 16

in determining custody, court is PROHIBITED from considering what four things?

Back 16

• sex of parent
• marital status
• Race
• Religion

Front 17

While a court is prohibited from considering "religion" of person seeking custody, it may consider:

Back 17

immoral, illegal, or HARMFUL religious beliefs

Front 18

Void Marriages?

Back 18

•either party under 16yrs old and w/out court order (NO parental consent allowed)

•Bigamy

•marriage w/in 3-degrees of consanguinity

•same-sex marriage

Front 19

What if person who conducted the marriage ceremony was not authorized to do so?

Back 19

Marriage is valid if:
• person reasonably appeared to authorized to do ceremony,

•at least one party acted in good faith reliance on appearance of authority, and

•neither spouse is a minor

Front 20

Can first cousins get a marriage license?

Back 20

NO, cousins cannot get a marriage license.
-any attempt to get married is VOID

Front 21

How can cousins be married in Texas?

Back 21

(i) if married in state that recognizes cousin marriages before moving to TX, OR
(ii) married before TX changed the law

Front 22

how can minors aged 16-17 get a marriage license?

Back 22

must get parental consent w/in 30 days of applying for license.
-the license cannot be stale.

Front 23

as to informal marriage, what effect if parties separated and ceased cohabitating for 2 years w/out filing suit for annulment?

Back 23

creates a rebuttable presumption there was no agreement to be married.

Front 24

what is the effect of filing a "declaration of informal marriage"?

Back 24

•sworn record that couple meets common-law marriage req's.
•allows for them to set a record date of marriage (they get to pick the effective date).

Front 25

a marriage w/in 72 hrs of license issuance is a grounds for annulment. What are the exceptions? And what is the SOL?

Back 25

(i) 1 party is in military,
(ii) Ct waiver,
(iii) spouses completed pre-marital course.

SOL: 30days after M.

Front 26

if grounds for annulment exists (i.e., impotency; incompetency; fraud/duress; drunk) must court grant a request for annulment?

Back 26

NO, Court has DISCRETION.

ex: ct might deny annulment if W is pregnant.

Front 27

Where can a spouse who is not a TX domiciliary file for divorce in Texas?

Back 27

file petition in county where spouse currently resides so long as the other spouse has been domiciled in Tx for 180days (even if not 90 day county resident)

Front 28

If filing for divorce and have minor marital children what must be included in the petition?

Back 28

must file a SAPCR w/ petition

Front 29

if a protective order for family violence is in effect before filing for divorce what must petition include?

Back 29

petition must state that there is a "protective order for family violence in effect."

Front 30

What is the statutory language for No-Fault divorce?

Back 30

"the M has become insupportable b/c of discord or conflict of personalities that destroys the legitimate ends of the M relation and prevents reasonable expectation of reconciliation."

Front 31

W files for no-fault divorce, what is a defense for H?

Back 31

H can claim there is a "reasonable expectation of reconciliation."

Ct can:
(i) grant divorce OR
(ii) order counseling to determine read expectation of reconciliation

Front 32

FAULT BASED Divorce Grounds?

Back 32

•cruelty,
•adultery,
•felony conviction,
•abandonment 1yr+,
•separation for 3yrs,
•mental hospital for 3yrs

Front 33

What are the public policy considerations in determining child custody?

Back 33

•ensure frequent contact w/ parents who act in BIC.

•provide a safe, stable, non-violent home environment.

•encourage parents to share the rights and duties of parenthood.

Front 34

the paramount consideration in child custody determination is BIC.

What factors does a court look to determine BIC?

Back 34

[8 factors from Holley v. Adams]
•desires of C,
•emo & phys needs of C,
•emo & phys danger of C,
•parental abilities of persons seeking custody,
•plans for C,
•home stability,
•acts or omissions of Ps which may show existing P-C relationship improper,
•any excuse for those acts or omissions

Front 35

Apart from the 8 Holley v. Adams factors, what else is permissible for court to consider BIC?

Back 35

•history of domestic violence;

•false reports of C abuse;

•intentional use of force w/in 2yrs against spouse, C's other parent, or any C.

Front 36

When "must" a court interview Cs 12 or older?

Back 36

in a NON-Jury trial, court MUST interview Cs 12 or older.

-discretionary interview of Cs under 12.

Front 37

how can 1P persuade the court to deny the other visitation rights?

Back 37

provide clear & convincing evidence of abuse (endangerment of C's emo and pays health).

Front 38

what is the effect of a P's filing "involuntary" termination parental rights against the other P and it be granted?

Back 38

can't get C support

Front 39

what is the effect of a jury verdict as to which party determines C's primary residence?

Back 39

jury verdict is binding on court (no JNOV)

Front 40

There is a rebuttable presumption that joint managing conservatorship is:

Back 40

in the BIC

Front 41

why will court not appoint both parents as JMCs?

Back 41

ct believes it will not be in the BIC b/c it would substantially impair the C's physical health or emotional development

Front 42

What is the standard possession order for noncustodial parents who live w/in 100miles?

Back 42

[Ps live w/in 100 miles]
noncustodial gets possession:
•6-8pm every Thursday school year,
•6pm Friday - 6pm Sunday the 1st, 3rd, and 5th weekend each month,
•30days in summer

Front 43

while it is presumed that appointing Ps as joint managing conservators is in the BIC. Ct will also look to whether:

Back 43

• if parents are able to reach shared decisions?

• if Ps can encourage and axxept positive relationships b/w C and other parent?

• if both participated in child rearing before suit was filed.

•geographic proximity of the Ps homes

Front 44

Which JMC can be order to pay child support?

Back 44

either

Front 45

The court awards H "reasonable visitation." Is the order enforceable?

Back 45

NO - too vague

Front 46

Mom got drunk and forgot to pick up C from the mall. Will a court deny Mom's visitation?

Back 46

NO. Total denials are extremely harsh.
-at worst a ct will order supervised visitation.

Front 47

a final order in a SAPCR tied to a suit for the dissolution of marriage must incorporate a _____ ___.

Back 47

parenting plan


*all final orders in divorce suits w/ a SAPCR attached must include a "parenting plan."

Front 48

what is included in a "parenting plan"?

Back 48

•rights and duties of parties.

•provides for periods of possession and access (visitation).

•includes child support if ordered.

•optimizes development of close and continuing relationship b/w C and each P

Front 49

Can a jury determine:
(i) which party will have right to determine C's primary residence?
(ii) visitation issues?
(iii) child support?

Back 49

Yes only as to primary residence.

•issues re: visitation and child support canNOT go to the jury.

Front 50

What must a grandparent file to obtain reasonable access or possession?

(5 elements)

Back 50

a bio or adoptive GP should file an original suit or a suit for modification, &
attach an affidavit based on personal knowledge or belief w/ facts alleging that "denial of possession or or access to the C by petitioner (GP) would significantly impair the C's physical health or emotional well-being."

Front 51

if an order granting grandparent access is rendered over a parent's objections, the order must specify that at the time of relief was requested:

Back 51

(i) at least one of C's parents have not had rights terminated;
(ii) the GP proved by a preponderance of the evidence that denial is not in the BIC; and (iii) the GP's so or daughter:
-has been in jail for 3months prior to the petition,
-was adjudicated incompetent,
-is dead, or
-has no actual or ct ordered possession or access to the C.

Front 52

The fit parent who contests/objects to GP possession or access is ________________.

Back 52

presumed to be acting in the BIC.

Front 53

By Statute and per SCOTUS the only way a GP will be granted reasonable access or possession over a parent's objection is if the GP:

Back 53

overcomes the presumption that the objecting parent's objection is in the BIC, by proving by preponderance that "denial of possession or or access to the C by petitioner (GP) would significantly impair the C's physical health or emotional well-being."

Front 54

Child support order cannot extend beyond child turning 18: unless?

Back 54

•progress toward HS graduation (but cap at 21)

•C is disabled

•by agreement

Front 55

Child support obligation automatically cuts off when:

Back 55

•C dies (but may owe arrearages)
•enlistment.
•emancipation.

Front 56

What is the "catch all" factor for a court to use to deviate from the statutory child support guidelines?

Back 56

"any other reason consistent with the BIC, taking into consideration the circumstances of the parents."

Front 57

if obligor is order pay health insurance of C is that payment included in the support calculation?

Back 57

NO.
-the presumption that obligor will be ordered to pay medical support for the child is in addition to the amount of child support provided by the guidelines.

Front 58

Facts don't say how much obligor makes or court has no evidence. What will the ct do if no evidence of salary or wage income?

Back 58

Ct is required to presume that the party has wages or salary equal to the federal minimum wage for a 40-hour week

Front 59

Because the guidelines are presumed to be BIC, a court cannot deviate from them unless evidence justifies a deviation. In order to deviate from the guidelines a court must determine whether such deviation would be unjust or inappropriate under the circumstances based on all relevant factors including but not limited to:

Back 59

•C's age and needs,
•P's financial ability,
•other financial resources,
•am't of possessory time,
•net resources--underemp
•child care expenses,
•care of other children,
•spousal maintenance,
•college tuition,
•employer benefits,
•deductions from pay
•health insurance situation,
•cost to exercise custody
•business cash flow,
•debts,
•anything else that may be in BIC

Front 60

Does intentional unemployment or
underemployment require showing that obligor has the intent to avoid child support?

Back 60

NO. Lliff case says may make the determination based on obligor's potential. Court's holding must be supported by facts in the record.

note: TX/Sct says trial courts "should be cautious."

Front 61

what must a court do in order to avoid erring when it bases a child support on assertion that obligor is intentionally underemployed or underemployed?

Back 61

the finding of underemployment must be supported by the record. Ct cannot speculate and the TX/Sct has warned trial court to be cautious in this area.

Front 62

facts: Man with erratic employment history gets temporary reduction of child support obligation, followed by automatic increase one year down the road. Result?

Back 62

Reversible error.

-can't have automatic increases based on speculation. only in extraordinary circumstances based on facts.

Front 63

When can a party seek modification of child support?

Back 63

if there has been a MATERIAL and SUBSTANTIAL change in circumstance of:
• the child, or
• a "person affected by the order."

Front 64

What is "material and substantial" for modification of a child support order?

Back 64

MATERIAL:
-release from jail,
-going to jail,
-military service,
-obligor has had voluntary possession of C for 6months

NOT material:
-new spouse,
-obligee lifestyle change
-obligor voluntarily paid add'l $,

Front 65

if there is a deviation from the guidelines the trial court must provide what in the order?

Back 65

the basis for the deviation in the findings of fact based on the record.

Front 66

Appellate standard of review for child support order?

Back 66

Abuse of discretion.

but: evidence must support trial court holding.

Front 67

Child has no presumed father, but court dismisses C's case seeking child support from person believed to be bio-dad. (?)

Back 67

it is unconstitutional to prevent child with no presumed father from seeking support from bio-dad.

Front 68

If a man sleeps w/ a woman, thinks he got her prego, he can register as the father, listing women’s name.

-Must be done w/in __ days of child’s birth.

Back 68

30

Front 69

The mother-child relationship is established between a woman and a child by:

Back 69

• Giving birth to the child;

•Adjudication of the woman's maternity; or

• Adoption of the child by the woman

Front 70

The father-child relationship is established between a man and a child by:

Back 70

•An unrebutted presumption of the man's paternity of the child;

•An effective acknowledgment of paternity by the man, unless the acknowledgment rescinded or successfully challenged;

•adjudication of the paternity

•man Adopts the C; or

•consent to assisted reproduction by his wife which resulted in the birth of the child.

Front 71

a man is presumed to be the father of a child if:

Back 71

•married or appears to be married to mother when C is born;

•C born w/in 301 days of divorce;

•married C's mother & voluntarily asserted paternity, &:
- assertion filed w/ bureau of vital stats;
-voluntarily named dad on C birth cert;
-record promise to support C as his own, or
-during first 2yrs of C's life cohabed and holdout C as his.

Front 72

SOL for paternity:

(i) C w/ NO presumed, acknowledged, or adjudicated Dad?

(ii) C w/ presumed Dad?

Back 72

(i) No SOL

(ii) before C 4th B-day

Front 73

(i) What must parent file if other interferes with custody or visitation?

(ii) What liability for custody interference?

Back 73

(i) file a writ of habeas corpus (only if there is a valid court order awarding custody)

(ii) Statutory Tort Liability

Front 74

What is the standard of proof for involuntary termination of parent-child relationship?

Back 74

clear & convincing evidence.


*presumed NOT terminating parentage is in BIC.

Front 75

can a court consider family violence in determining whether to deviate from the statutory child support guidelines?

Back 75

NO.

family violence does NOT warrant a deviation from the guidelines,
-but may warrant visitation restrictions.

Front 76

if court deviates from child support guidelines it order must:

Back 76

•state why the guideline amy was inappropriate or unjust;

•provide net resources of obligor and obligee;

•provide % applied to obligor's net resources;

•specify why it deviated

Front 77

child support payments are made to?

(where is the check sent?)

Back 77

state disbursement center

Front 78

all final orders for periodic child support must provide for ____ withholding.

Back 78

mandatory

Front 79

the maximum amt subject to mandatory wage/salary witholding is __%.

Back 79

50% max

Front 80

What can happen to an obligor who fails to pay child support?

Back 80

•license suspension (3mo arrears and has been given 60days notice and opportunity to pay up)

•can't get state grants, loans or Ks if 30days in arrears;

•lien can attach to non-exempt personal or non-exempt real property (non-homestead).

•contempt (6mo jail &/or $500 fine)