BAR ESSAYS

Question 1

Marriage

Answer 1

Marriage is a contract that requires that the parties have legal capacity to consent to a contract.

Question 2

Common Law Marriage

Answer 2

Called an “informal marriage;” Requires (1) living together as a married couple, (2) holding themselves out to the public as a married couple, and (3) an agreement to be married (can be oral, written, or inferred).

Question 3

Voidable Marraiges

Answer 3

Under the influence of drugs or alcohol, impotency, fraud, duress, or force, marriage within 72 hours of license.

Question 4

Duty of Support in Marriage

Answer 4

Each spouse has a duty to support the other spouse; if one spouse incurs a debt for necessaries both spouses are liable for the debt.

Question 5

Grounds for Divorce

Answer 5

Insupportability (no fault); cruelty; adultery; conviction of a felony; abandonment; living apart; and confinement in a mental hospital.

Question 6

Marriage Jurisdiction

Answer 6

The authority to sever the marriage relationship and end the marriage is considered an in rem proceeding. The court does not need personal jurisdiction over the respondent spouse.

Question 7

Beginning Divorce Porceedings

Answer 7

Suit begins by filing an original petition for divorce. Divorce cannot be granted until 61 days after filing the original petition. If there is no answer after service of process, the court may grant a divorce by default.

Question 8

Transfer of Property During Divorce

Answer 8

While a divorce is pending, any incurrence of debt or transfers of property are void if the third party has knowledge and notice of the pending divorce.

Question 9

A parent awarded primary possession of a child is called the…

Answer 9

sole managing conservator.

Question 10

A parent awarded only visitation rights is called a…

Answer 10

possessory conservator.

Question 11

In determining conservatorship, the court’s primary consideration is…

Answer 11

the “best interest of the child.” The court must appoint a parent, or both parents, as managing conservator unless doing so would significantly impair the child’s physical health or development.There is a presumption that appointing the parents as joint managing conservators is in the best interest of the child, but the presumption is destroyed if there is a history of family violence. The court may not allow a parent who has been shown by a preponderance of the evidence to have a history or pattern of committing family violence during the previous two years to have access to the child.

Question 12

Suit Affecting Parent Child Relationship

Answer 12

A suit affecting the parent-child relationship (“SAPCR”) is a suit regarding the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship.

Question 13

Non-parents with standing to bring a SAPCR…

Answer 13

include those who have had custody of the child for at least six months, the child, a guardian, a conservator, and an authorized agency (this list is not exhaustive). To overcome the presumption that a parent is acting in the child’s best interest, the non-parent must prove by a preponderance of the evidence that denial of possession or access would significantly impair the child’s physical health or emotional well-being.

Question 14

Child Support Determination

Answer 14

Texas provides statutory guidelines to determine the amount owed by the noncustodial parent or obligor. The child-support determination starts with a rebuttable presumption that, for one child, 20% of the noncustodial parent’s net resources are reasonable and in the child’s best interest. The statutory amount can be increased or decreased based on the child’s needs, the parents’ ability to contribute, any additional financial resources available to support the child, and the amount of possession of and access to the child.Extraordinary expenses such as medication or special education needs may warrant increased child support, but typical childcare expenses do not.

Question 15

Presumption of Child Support Amount

Answer 15

For one child, 20% of the obligor parent’s net monthly resources. These guidelines apply only to the first $8,550 per month of net resources. If the obligor’s monthly net resources are greater than $8,550, a court may order support beyond the statutory guidelines only if the proven needs of the child warrant an additional amount. However, an obligor will never be required to provide additional support beyond the child’s proven needs no matter how great the obligor’s wealth.

Question 16

How long must a parent support a child?

Answer 16

Generally, a parent has a duty to support a child until he is 18 years of age or graduates from high school, whichever happens later.

Question 17

If an obligor fails to pay child support…

Answer 17

the amount in arrears automatically becomes a money judgment—a final judgment for the amount due and owing. A motion requesting money judgment must be filed no later than 10 years after the date the child becomes an adult or the date on which the child-support obligation terminates under the child-support order or by operation of law.

Question 18

What property is subject to a child-support obligation?

Answer 18

An obligor’s sole management community property, separate property, and joint management community property would be subject to an obligor’s obligation to pay child support. Sole management community property consists of a spouse’s wages and income from a spouse’s separate property. When the sole management community property of one spouse is mixed with the sole management community property of the other spouse, that mixed property becomes joint management community property.

Question 19

Rights of sole-managing conservator.

Answer 19

Designate the child’s primary residence; consent to medical, dental, and surgical treatment; psychological treatment; receive child support; represent the child in legal issues; consent to marriage or enlistment; decide the child’s education.

Question 20

Termination of Parental Rights

Answer 20

A court may terminate a person’s parental rights to a child if it finds by clear and convincing evidence that doing so is in the child’s best interest and that the parent has committed one of the culpable acts enumerated in the Texas Family Code. The “best interest of the child” determination is within the broad discretion of the trial court, but an appellate court must ensure that the clear and convincing standard was met. In addition, the appellate court must find that the trial judge could have reasonably found clear and convincing evidence that a statutory ground for termination existed.

Question 21

Termination of parental rights enumerated acts in the Texas Family Code

Answer 21

These include acts amounting to abandonment, endangerment of the child, refusing to submit to a court order regarding investigation of child abuse or neglect, or use of a controlled substance in a manner that endangered the child’s health or safety. In particular, knowingly placing a child in or allowing a child to remain in conditions or surroundings that endanger the child’s physical or emotional well-being, engaging in conduct that endangers the child, being convicted or placed on community supervision (including deferred adjudication) for being criminally responsible for a child’s serious injury, using controlled substances in a manner that endangered the child’s health or safety and then failing to complete court-ordered rehab, or using controlled substances again after completing court-ordered treatment, and knowingly engaging in criminal conduct that has resulted in the parent’s conviction and confinement or imprisonment.

Question 22

Just and Right Division

Answer 22

Texas trial courts divide community property in a “just and right” manner upon divorce. Factors to be considered in the just and right division of property include the spouses’ capacities and abilities, fault in the breakup of the marriage if the divorce is granted on fault grounds, benefits the party not at fault would have derived from continuation of the marriage if the divorce is granted on fault grounds, relative business opportunities, financial conditions and obligations, the nature of the property, and the length of the marriage. Trial courts are given great discretion to determine a just and right division of property.

Question 23

Spousal Maintenance

Answer 23

Spousal maintenance is generally intended to be a temporary rehabilitative measure for a spouse who is unable to be self-sufficient. In order to qualify for maintenance, the spouse must be unable to be self-sufficient through property distribution, including separate party and meet one of the following conditions: (1) the payor has been convicted of family violence; (2) the spouse has an incapacitating disability; (3) the spouse is the custodian of a child with an incapacitating disability; or (4) the marriage last ten 10 years or longer.

Question 24

Family Violence Protective Orders

Answer 24

A court may issue a protective order for up to two years upon a showing that family violence has occurred and will likely occur again. A protective order may also be issued by the court if the person who is subject to the order (1) committed an act constituting a felony involving family violence, (2) caused serious bodily injury, or (3) was the subject of two or more previous protective orders.
After notice and a hearing, the court may prohibit an individual through court order from: (i) committing future acts of family violence; (ii) stalking; (iii) communicating directly or indirectly; (iv) being within a proscribed distance of the protected family member; (v) possessing of a firearm; or (vi) interfering with the care or control of a pet.