Community Property & Family Law Flashcards
What is the Inception of Title Rule?
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.
What is the characterization of an item on credit DURING the marriage?
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
What is considered in determining a Just and Right Division?
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.
What must an Appellant prove to reverse a trial court’s division of property?
The appellant must prove there was no rational basis for the trial court’s decision.
What may be characterized as Separate Property?
- 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.
What are the pre-requisites for Spousal Maintenance?
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.
What factors are considered when determining the amount of Spousal Maintenance Amount?
- 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
How is the duration for a Spousal Support Award determined?
10-20 years = 5 years of Spousal Support
20-30 years= 7 years
30+ years= 10 years of Spousal Support
What is required to establish an Informal or Common Law Marriage?
- 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.
Why would a couple choose to have a certified informal marriage over simply getting married while at the court house?
A certified informal wedding allows you to choose the relevant date of the marriage for benefits purposes.
What are the grounds for an Annulment?
- 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.
What is required in order to file for divorce in Texas?
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
When determining the Best Interest of the Child, courts will look to which factors?
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
What are four factors the court may NOT consider when deciding parent child custody?
- Sex
- Marital Status
- Race
- Religion
What factors does the court consider when determining whether the parents can be joint managing conservators?
- 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.
What is the evidentiary standard required to separate siblings?
Clear & Convincing Evidence
What is the Standard Possession Order?
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
What is required in a Parenting Plan?
- 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
What is the procedure to secure a parenting plan in High Conflict cases?
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
What is required to Modify an existing Parenting Plan
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.
Under what conditions may a Grandparent obtain visitation rights?
- 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.
When does a Grandparent have standing to bring a SAPCR requesting to be Managing Conservator?
- 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.
What is the sole issue in a Habeas Corpus Proceeding in Family Law?
Determines whether there is a custody order in existence. Not the provisions of the order.
What are the guidelines for the Amount of Child Support?
1 Child 20% net resources 2 Kids 25% 3 kids 30% 4 Kids 35% 5 Kids 40% More than 5---no less than 40%
What must the court do if it deviates from the Child Support Amount Guidelines?
- State why the guideline amount is unjust and inappropriate
- Provide the net resources of the obligor and obligee
- Provide the percentage applied to Obligor’s net resources
- State the specific reason for deviating from the guideline
What is the max amount applied to the standard Child Support Guidelines?
$8,850 Monthly
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%.
What is the maximum amount that may be taken from an Obligor in a Mandatory Witholding?
50% of take-home pay
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.
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
What can an Obligor that is more than 30 days in arrears not obtain?
State grants, loans, or Contracts
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.
What constitutes Family Violence?
- An act intended to result in physical harm, bodily injury, assault, sexual assault, or
- A threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault
Who is protected under the Family Violence?
- Members of Perps household/family
- Victim has a dating relationship
- Victim is targeted for their marriage or dating relationship with a person the perp married or dated
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.
What is required for an ex parte Kick Out Order
- Applicant must appear in person and file a sworn affidavit
- The applicant resided on the premises within the past 30 days
- The excluded person committed family violence against a member of the household within the past 30 days.
- The applicant at least jointly owns or leases the residence, or the excluded person has an obligation to support the applicant or her child
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
