Community Property & Family Law Flashcards
1
Q
What is the Inception of Title Rule?
A
inception of title rule, the separate or community character of property is determined at the time it is acquired, and no subsequent actions will alter its character. If an asset is acquired before marriage, it is the acquiring spouse’s separate property. Where installment payments on a purchase are begun before marriage and completed after marriage, the purchase is separate property, even if the bulk of payments are made with community funds. Here, Wife acquired title before marriage, therefore the car is her separate property.
2
Q
What is the characterization of an item on credit DURING the marriage?
A
An asset acquired on credit is presumptively acquired on community credit. The source of funds later used to pay off the credit obligation is irrelevant because ownership is determined at the time the asset is purchased on credit
3
Q
What is considered in determining a Just and Right Division?
A
In making that determination, the court considers several factors, including:
(i) the disparity of income and earning capacity, as well as each spouse’s probable needs for future support;
(ii) each spouse’s business opportunities, financial conditions, and obligations;
(iii) each spouse’s education and abilities;
(iv) each spouse’s relative physical condition;
(v) any disparity of ages between spouses;
(vi) the size of the separate property estates of the parties;
(vii) the legal nature of said separate property;
(viii) the benefits that the party not at fault would have derived from continuation of the marriage;
(ix) the length of the marriage; and
(x) whether one party has wasted or depleted community assets. Each factor relates to the spouse’s economic status and is generally forward looking.
4
Q
What must an Appellant prove to reverse a trial court’s division of property?
A
The appellant must prove there was no rational basis for the trial court’s decision.
5
Q
What may be characterized as Separate Property?
A
- Property acquired before marriage—inception of title
- Property acquired during marriage, by gift, devise, or descent
- Property acquired during marriage but purchased with separate property funds–tracing.
6
Q
What are the pre-requisites for Spousal Maintenance?
A
Two situations:
- Spouse was convicted or received adjudication for an incident of family or domestic violence against the requesting spouse or the couple’s shared children.
- The spouse seeking maintenance:
a) Is unable to earn a sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating Physical or Mental disability
b) Has been married for 10 years or more and lacks sufficient income to provide for the spouse’s reasonable needs
c) Is the custodian of a child of the marriage of any age who requires substantial and personal supervision because of a physical or mental disability.
7
Q
What factors are considered when determining the amount of Spousal Maintenance Amount?
A
- Each spouse’s ability to provide for his or her minimum reasonable needs independently
- the education and employment skills of the spouses
- The duration of the marriage
- The age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance
- Excessive or abnormal expenditures or destruction concealment or fraudulent disposition
- The contribution by one spouse to the education, training, or increased earning power of the other spouse
- Property brought to the marriage
- Contribution of a spouse as homemaker
- Marital misconduct
- History or pattern of family violence
8
Q
How is the duration for a Spousal Support Award determined?
A
10-20 years = 5 years of Spousal Support
20-30 years= 7 years
30+ years= 10 years of Spousal Support
9
Q
What is required to establish an Informal or Common Law Marriage?
A
- Neither party is a minor
- There is an agreement to be married
- Within TX, the couple has represented themselves to others as husband and wife
- Cohabitation
What are the grounds to defeat the presumption of a Common Law or Informal Marriage? Separated and Ceased living together for 2 years or more.
10
Q
Why would a couple choose to have a certified informal marriage over simply getting married while at the court house?
A
A certified informal wedding allows you to choose the relevant date of the marriage for benefits purposes.
11
Q
What are the grounds for an Annulment?
A
- Aged 16 or 17 without parental consent or a court order—*Must be brought by parent or guardian before the child turns 18 or within 90 days if brought by Child’s next friend”
- Divorced less than 30 days before marriage and concealed this fact.
- Impotency
- Incompetency
- Fraud, Duress, Force—*This includes Green Card Marriages
- Under the influence of drugs or narcotics
- Marriage took place within 72 hour waiting period after marriage license is obtained. Exceptions: a) one party is Armed forces b) Waiting period was waived by the court c) Spouses completed a premarital course
Statute of limitations for annulments under these grounds is 30 days.
Grounds 2-6 are NOT Valid if the spouses continued to cohabitate after discovering the condition.
12
Q
What is required in order to file for divorce in Texas?
A
One of the parties must be domiciled in Texas for 6 months.
A Spouse can bring a suit in a county where they have resided for 90 days
13
Q
When determining the Best Interest of the Child, courts will look to which factors?
A
HOLLEY Factors:
- Desires of the children (12 and up)
- Emotional and Physical needs of the children, both now and in the future
- The emotional and physical danger posed to the children both now and in the future
- The parental abilities of each individual seeking custody
- The plans for the children
- The stability of the home
- The acts or omissions of the parents which may indicate that the existing parent-child relationship is not a proper one; and
- Any excuse for those acts or omissions
14
Q
What are four factors the court may NOT consider when deciding parent child custody?
A
- Sex
- Marital Status
- Race
- Religion
15
Q
What factors does the court consider when determining whether the parents can be joint managing conservators?
A
- Whether parents have the ability to reach shared decisions
- Whether parents can accept and encourage a positive relationship between the child and the other parent
- whether both participated in child-rearing before the suit was filed
- Geographic Proximity of the parents.
16
Q
What is the evidentiary standard required to separate siblings?
A
Clear & Convincing Evidence
17
Q
What is the Standard Possession Order?
A
From 6pm Friday through 6pm Sunday on the 1st, 3rd, 5th weekend of the month
6pm-8pm on Thursday nights
30 Days over the summer
and Alternating Spring Breaks
18
Q
What is required in a Parenting Plan?
A
- Sets out rights and duties of each party
- Provides for periods of possession and access with the child
- Provides for Child Support
- Optimizes the development of a close and continuing relationship between the child and each parent
19
Q
What is the procedure to secure a parenting plan in High Conflict cases?
A
The court appoints a parenting coordinator who is an impartial 3rd party who assists the parties in resolving the issue.
The court can also appoint a Parenting Facilitator to ensure that both parties comply with court orders
20
Q
What is required to Modify an existing Parenting Plan
A
The Modification is in the best interest of the child AND
- Circumstances have materially and substantially changed since the date of rendition or signing of a mediated settlement agreement. OR
- A child aged 12 has expressed to the court in chambers the name of the parent the child wants to have the power to determine the child’s primary residence.
21
Q
Under what conditions may a Grandparent obtain visitation rights?
A
- The child’s physical health or emotional well being will be significantly impaired if the grandparent is denied access.
- At least one of the child’s parents has not had their parental rights terminated, and
- The grandparent is the biological or adopted parent of the child’s parents and
- The grandparent’s son or daughter:
a) Has been incarcerated for 3 months before the petition is filed. or is
b) Incompetent
c) Dead
d) does not have actual or court-ordered possession - The child’s remaining parent intends to completely deny the grandparent possession and access.
22
Q
When does a Grandparent have standing to bring a SAPCR requesting to be Managing Conservator?
A
- Both parents are Dead
- Both parents or surviving parent consents, OR
- The grandparent provides satisfactory proof that the child’s present circumstances significantly impair the child’s physical health or emotional development. **Must be shown by a preponderance of the evidence.
23
Q
What is the sole issue in a Habeas Corpus Proceeding in Family Law?
A
Determines whether there is a custody order in existence. Not the provisions of the order.
24
Q
What are the guidelines for the Amount of Child Support?
A
1 Child 20% net resources 2 Kids 25% 3 kids 30% 4 Kids 35% 5 Kids 40% More than 5---no less than 40%
25
What must the court do if it deviates from the Child Support Amount Guidelines?
1. State why the guideline amount is unjust and inappropriate
2. Provide the net resources of the obligor and obligee
3. Provide the percentage applied to Obligor's net resources
4. State the specific reason for deviating from the guideline
26
What is the max amount applied to the standard Child Support Guidelines?
$8,850 Monthly
27
What is the monetary threshold that must be satisfied for the Obligor to modify the Child Support award?
3 Years and current child support deviates from the guidelines by the greater of $100 or 20%.
28
What is the maximum amount that may be taken from an Obligor in a Mandatory Witholding?
50% of take-home pay
29
How does a self-employed father ensure the court he will pay the ordered child support since there is no employer to Withhold his wages.
Self Employed must give a bond, or other security.
30
What happens if the Obligor is 3 months or more in arrears and has failed to make payments based on the new repayment schedule?
Obligor's license can be suspended. This includes:
a) Driver's License
b) Hunting License
c) Professional License
31
What can an Obligor that is more than 30 days in arrears not obtain?
State grants, loans, or Contracts
32
What happens if the court holds Obligor in contempt?
Jail Obligor for up to 6 months. Fine Obligor up to $500. May also order Community Supervision for up to 10 years with the possibility of extension not to exceed 2 years following the 10 year Statute of limitations.
33
What constitutes Family Violence?
1. An act intended to result in physical harm, bodily injury, assault, sexual assault, or
2. A threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault
34
Who is protected under the Family Violence?
1. Members of Perps household/family
2. Victim has a dating relationship
3. Victim is targeted for their marriage or dating relationship with a person the perp married or dated
35
What is required for a Temporary Ex Parte Order?
Clear and present danger of violence sworn containing the relevant facts in the Affidavit. Initial lasts 20 days but may be extended 20 days at court's discretion.
36
What is required for an ex parte Kick Out Order
1. Applicant must appear in person and file a sworn affidavit
2. The applicant resided on the premises within the past 30 days
3. The excluded person committed family violence against a member of the household within the past 30 days.
4. The applicant at least jointly owns or leases the residence, or the excluded person has an obligation to support the applicant or her child
37
What are the requirements for a Protective Order
Notice and Hearing. 1. Family violence has occurred or is likely to occur in the future OR
2. The respondent violated previous protective orders
38
What are the timing requirements for the time of hearing for a Protective Order?
Between 48 hours and 14 days after the application is filed unless the prosecuting attorney requests a later hearing in which case it must take place within 20 days of filing.
39
What is the duration of a Protective Order?
Not to exceed 2 years
40
What is the appropriate venue for filing a protective order?
1. County where either party resides, 2. The court where the existing SAPCR has already been filed or 3. The county in which the violence occurred.
41
What is the difference between Temporary Orders and Protective Orders
Protective Orders allow for more relief by way of:
1. Support payments
2. Attorney's Fees
3. Battering Intervention
* *In BOTH, Perp. may not possess firearms or ammunition
42
What is the duration of a Temporary Restraining Order (TRO) Ex Parte
14 Days
43
What is a Temporary Injunction and how long does it last?
Same as a Temporary Restraining Order PLUS:
1. Support & Attorney's Fees
2. Prohibit unreasonable acts
3. Grant Exclusive possession of residence.
Duration: Until Final Judgement is issued
44
When may Texas Dept. of Family and Protective Services take possession of a child without a court order?
If TDFPS received information that would lead a person of ordinary prudent and caution to believe that child was the victim of sexual abuse or is in immediate danger, and there is no time to obtain a temporary restraining order
45
What must TDFPS do once they have taken possession of a child without a court order?
1. File a SAPCR and obtain an ex parte hearing within 1 working day after the child was taken into possession. TDFPS must also provide the parents with notice of the hearing as well as: a) The reasons why TDFPS took possession of the child and b) A summary of the parent's legal rights.
46
How will TDFPS retain the child what must be shown at the Ex Parte hearing?
They must show there is a continuing danger to the physical health and safety of the child and reasonable efforts were made to prevent the need for removal.
47
What must TDFPS prove at the Adversary hearing to retain the child?
Adversary hearing must take place in 14 days.
TDFPS must present evidence sufficient to satisfy a person of ordinary prudence and caution that:
1. There was a danger to the physical health or safety of the child caused by the parent and reasonable efforts were made to prevent the need for removal, and
2. despite reasonable efforts, there is a substantial risk of continuing danger if the child is returned home, including the risk that the child might be the victim of trafficking.
48
What happens if either one of the trials are not held within the required time period?
TDFPS must return the child to their parents.
49
What are the four types of fathers?
1. Presumed Father
2. Acknowledged Father
3. Adjudicated Father
4. Alleged Father
50
What is required to classify one as a Presumed Father?
1. The child was born within 300 days of marriage or attempted (but void) marriage,
2. He married the mother after the child's birth and
a) Acknowledged paternity with the Bureau of Vital Stats OR
b) on Record to support the child, OR
c. was voluntarily named on the birth certificate, or
3. During the first 2 years of the child's life he
a) resided with the child's mother
b) Represented to others that he was the father of the child.
51
If the mother is deceased, who else has standing to bring a paternity suit?
Mother's parents, grandparents, children, and grandchildren
52
How is paternity ultimately determined?
Genetic Evidence. 99% threshold
53
What may the court do if the father refuses the paternity test?
1. Hold in contempt
| 2. Default Judgement
54
How far back can court order retroactive child support?
4 years unless it is shown that father knew of his paternity and was avoiding support.
55
What factors does the court consider for Paternity by Estoppel?
1. The time elapsed since presumed father was put on notice that he might not be the father.
2. Other factors surrounding the discovery of his possible non-paternity
3. The length of time he assumed the role of father
4. The child's age, and the nature of their relationship
5. The harm that may result to the child if paternity is disproved
56
How can an Acknowledged father terminate his parentage?
1. He was under a mistaken belief that he was the father And
2. He is NOT the genetic father AND
3. He brings the termination suit within 2 years after he becomes aware of the relevant facts
57
What is the effect of a successful Termination Suit as it relates to Child Support?
Eliminates:
1. Future Child support AND
2. Post judgment interest on past due child support
* *PAST DUE CHILD SUPPORT IS STILL DUE!**
58
Who has standing to adjudicate paternity after the child becomes an Adult?
The Adult Child ONLY
59
How may a Step Parent adopt a step child?
The child must be at least 2 years old and the parent-child relationship has been terminated with respect to one parent AND
1. The person seeking adoption has been a managing conservator or has had actual care, possession, and control of the child for 6 months preceding the adoption and the non-terminated parent consents OR
2. The step parent is seeking adoption and he or she has been the managing conservator or has had actual care, possession, and control of the child for a period of one year.
60
How does a mother put her child up for adoption?
Mother signs an Affidavit of Relinquishment. Serves as consent to terminate the parent-child relationship. This may not be done until at least 48 hours following the child's birth.
61
What must the Adopting mother do in order to adopt her baby?
Must submit the appropriate reports:
1. Preplacement portion of Adoption Evaluation
2. Post placement portion of Adoption Eval.
3. A report showing the adoptive parents Criminal Record
4. A SHEG report about the cihld (Social, Health, Education, and Genetic History)
62
Following the Adoption how long is the period upon which the birth mother may contest the adoption?
Up to 6 months. Not contestable or attackable after 6 months.
63
What is the evidentiary standard for involuntary termination of a parent's rights?
Clear and Convincing Evidence
64
How may a parent's rights be involuntarily terminated?
1. Nonpayment of Child Support for a period of 1 year
2. One of the 20 grounds for termination which include:
a) Abandonment
b) Abuse,
c) Child Endangerment
d) Imprisonment for 2 years
e) Culpable acts towards the child or other children
f) Use of a controlled substance
65
How long must a child live with their new adopted parents before being issued a final adoption decree?
6 Months
66
When the adopted child becomes an adult, what information is he entitled to?
A copy of both SHEG reports from both parents.
67
Under what circumstances is a parent liable for their child's tortious actions?
When damage is caused by willful and malicious acts of children 10 or under. Damages are limited to $25,000 per act plus court costs and attorney's fees.
Parental Liability for theft for children under 18 is up to $5,000.
68
What is the lowest Intermediate Balance Principle
Community Property out first presumption
69
What is the Identical Sum Difference method?
The community out first presumption can be overcome when the deposit and withdrawal are "close in time and close in amount"
70
What is the defined benefit plan formula when the spouse is retired?
Years employed during marriage/total years employed at the time of retirement
71
How do you determine the value of the retirement plan?
The plan is valued at the time of divorce. The formula is:
Plan X pays a lifetime annual pension equal to:
(2% x [years of service] x [average of 3 highest salaries
72
What is the Berry Rule in regards to Defined Benefit Plan?
Total years employed during marriage/ total years employed at the time of divorce
73
How are worker's compensation and disability benefits characterized?
The same way as the wages they were intended to replace.
74
What is the rule regarding the characterization of Tort awards?
1. Lost wages---Community Property
| 2. Pain and Suffering---Separate Property
75
What is the characterization of Military Disability Benefits?
SEPARATE PROPERTY. Federal law exempts them from characterization and division.
76
What is the characterization of debt incurred during the marriage?
Presumption of CP. Creditor must have agreed to look ONLY to the spouse's separate property
77
What is Quasi-Community Property?
Property that would have been CP had the spouses acquired it while domiciled in Texas. Courts divide property in a "Just and Right Amount"
78
What is the characterization upon death in a NONCP state in regards to property?
1. Spouse's salary is SP
2. Titleship determines ownership.
3. Property rights do NOT change when they move to Texas
79
What three situations terminate spousal maintenance?
1. Death of supported spouse
2. Remarriage of supported spouse
3. Cohabitation of supported spouse with a their new spouse
80
What is the Statutory Limit on the payments for Maintenance
Lesser $5,000 or 20% of the obligor's gross income
81
What is the effect of Reimbursement?
Does not change the characterization of the property. SP must pay the CP back for the expenses CP endured for the SP property.
1. Unsecured Property----Dollar for Dollar
2. Secured Debt---Reductions in Principle No interest
3. Capital Improvements---Enhanced Value
82
What Bars a Reimbursement Claim?
1. The payment of child support/alimony
2. The living expenses of the spouse or child of spouse
3. Nominal contributions to the property
4. Nominal payments toward a liability
5. Payment toward a student loan owed by a spouse
6. Spousal Gifts
83
What factors does the court consider when deciding on Fraud on the Spouse?
1. Who received the gift
2. The size of the gift
3. Whether the spouse can be made whole out of the remaining community estate.
84
What is the presumption of fraud?
Arises when one spouse disposes of community property unfairly or without the other spouse's knowledge or consent. The burden then shifts to the donor to show that the use of CP funds was fair. Some cases have also that a gift to an unrelated person is presumptively fraudulent.
85
What are the Available Remedies Available for Fraud on the Spouse?
1. Challenge the gift during donor's life. Gift can be set aside in its entirety .
2. Challenge the gift after the donor dies: gift will be set aside only as to the wronged spouse's 1/2 interest in the property.
3. In cases of divorce or death, the court will calculate reconstituted estate which consists of all the property that would have been in the community estate absent fraud.
86
What is the statute of limitations for the enforcement of a divorce judgment?
10 year statute of limitations. That statute begins when the first payment becomes due.
What is the exception:
2 year statute of limitations applies when enforcing the division of:
a) Tangible personal property in existence at the time of divorce
b) Future Property
87
If the court fails to incorporate terms of a settlement into its judgment, can the enforcement be enforced?
Yes. Under a breach of contract claim which is subject to a 4 year statute of limitations.
88
What do Prenuptial Agreements Do?
Parties may contract with respect to:
1. Disposition of property upon separation, divorce, or death or the occurrence or non-occurrence of any other event.
2. The making of a will or trust
3. Modification or elimination of spousal support
4. Determining the managing rights of property
5. Defining what property will be SP and what will be CP. Cannot convert SP into CP until AFTER MARRIED
6. Choice of law to govern construction of the agreement.
7. Any other matter not in violation of public policy
89
What is required of a Prenuptial Agreement?
In writing and signed. Consideration is not required.
90
What must a spouse do to challenge a Prenuptial Agreement?
Challenger has the burden of proof. Must prove
1. Did not execute it voluntarily OR
2. The agreement was unconscionable when signed.
91
What is the three-point test for Unconscionability?
1. No fair disclosure----Was not provided reasonable and fair disclosure regarding the property and financial obligations of the other party.
2. Right to Disclosure not waived. The party arguing against the agreement did not give written waiver of the right to disclosure
3. No adequate knowledge. The party arguing against the agreement did not have adequate knowledge of the other party's property or financial obligations.
92
What are the limitations of Conversion Agreements?
MUST BE MARRIED.
1. Must be made during marriage
2. Must alter the characterization of the property IMMEDIATELY
3. Does not affect the rights of an EXISTING creditor
93
What are the drawbacks to Conversion Agreements?
1. The newly created CP is immediately subject to a Just and Right Division
2. Lose creditor disposition
3. Lose the rights of disposition
94
What do Community Property Survivorship Agreements do?
1. State that CP will become the property of the SURVIVING SPOUSE.
The Requirements:
1. Must be in writing and signed by BOTH spouses
2. Containing a phrase like "with a Right of Survivorship"
