Dissolution of Marriage

Question 1

Grounds for Dissolution of Marriage

Answer 1

1. Insupportability = no-fault divorce. A divorce will be granted unless there is a reasonable expectation of reconciliation. “Insupportability results from discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. Most frequent.
2. Cruelty–of a nature that renders further living together insupportable.
3. Adultery
4. Conviction of Felony–if: (1) convicted spouse has been imprisoned for at least one year in state pen, fed pen, or pen of another state; and (2) has not been pardoned.
5. Abandonment–if: (1) spouse left the complaining spouse w/ intent to abandon; and (2) remained away at least 1 year
6. Living Apart–“The court may grant a divorce in favor of either spouse if the spouses have lived apart w/o cohabitation for at least three years.”
7. Confinement in Mental Hosptial–if (1) The other spouse has been confined in a state mental hospital or private medical hospital for at least 3 years; and (2) it appears that adjustment is unlikely or adjustment happens, relapse is likely to occur

Question 2

Jurisdiction

Answer 2

1. Domicile Requirements:

A. Generally, at least one spouse must be domiciled in TX or six months leading up to divorce filing. Additionally, that spouse must be resident of the county for 90 days preceding filing. *District court does not need PJ over the other party if one spouse meets the residence requirements. However, for personal liability (child support, spousal maintenance), PJ is required. Even if spouse does not meet 90 day residence test, she may file for divorce in county where other spouse resides.

B. Long arm jurisdiction

For divorce, annulment, or filing to declare marriage void, court will have PJ over nonresident spouse if:

(1) TX was the last marital residence of the petitioner and the respondent, and the suit was not filed more than 2 years after the marital residence ended; or
(2) There is any basis consistent with the constitutions of TX and the US for the exercise of the PJ (Ex.-the non-resident has been served in TX, files an answer in TX, or hires lawyer licensed in TX)

C. Minor Children Involved
If a court acquires long arm jurisdiction, it also requires jurisdiction over the respondent in SAPCR

2. Suit for Annulment or to Declare Marriage Void
   May be brought if the parties were married in TX, or if either party is domiciled in TX. The six-month domiciliary requirement and 90-day residency requirement do not apply.
3. Partial Jurisdiction
   A court in which a suit for dissolution of marriage is filed may exercise jurisdiction over those portions of the suit for which it has authority.

Question 3

Procedure

Answer 3

1. Pleadings:

Language must (1) allege grounds for divorce, annulment, void marriage but detailed statement of evidentiary facts NOT permitted. (2) Must also include whether a protective order for family violence is in effect or pending. (3) Must also indicate if children born or adopted under 18 years or otherwise entitled to support.

2. Minor Children Involved

A SAPCR must be joined in divorce proceeding only if both spouses are parents of the children and children not under continuing jurisdiction of another court. Can request SAPCR be moved.

3. Counseling

Court may order counseling for spouses while divorce is proceeding to determine whether reasonable expectation of reconciliation.

4. Waiting Period

A court may not grant a divorce until 60 days after filing the suit. Court can waive in cases of domestic violence.

5. Default Divorce

If respondent fails to answer, a court may grant a default divorce. This lack of response is not an admission. Petitioner retains burden of establishing ground for divorce only when either the date for an answer or 60 days have passed, whichever is later.

6. Pending Divorce Community Transfers and Debt Incurrence
7. Temporary Restraining Orders on Filing Divorce

To protect a party or a party’s property, court may grant a TRO ex part without notice if one party commits unreasonable acts with intent to harass, annoy, and alarm other party. TRO may not prohibit spending money on reasonable and necessary living expenses or engaging in usual occupation.

After notice and a hearing, a court may issue a temporary injunction to mandate or prohibit unreasonable acts.

8. Family Violence Protective Orders

A court may issue a PO for up to 2 years upon a showing that family violence has occurred and will likely occur again. IF exceeds 2 years, court must include a finding in the order. The subject of a PO must wait 1 year before she can request the court to consider whether there is a continuing need for the PO.
**Other info in the family code