Dissolution of Marriage Flashcards
Grounds for divorce - No fault
Marriage has become “Insupportable”
Most common ground used
Only defense is “reasonable expectation of reconciliation”
Ground for divorce- Fault
6 fault grounds, unlikely to be tested on the bar
- adultery
- cruel treatment
- abandonment
- living apart for 3 years
- confinement in mental hospital for at least 3 years
- conviction of felony with at least 1 year imprisonment
Tort action available fro injury to the community estate?
No
Durational Residency Requirement- Petition for Divorce
Either party must have been domiciliary of TX for the preceding 6 months
AND
a resident of the county in which the suit is filed for the preceding 90-day period
Exception for military or government service people
- Where must petition for divorce be filed?
- if both Texas domicilairies: county where either party lives
- If one of the parties has been a domiciliary of TX for at least 6 months, a nonresident spouse may sue for divorce in the county where the other spouse resides at the time the petition was filed
Suit for annulment or to declare marriage void
A suit to annul a voidable marriage or t declare a marriage void may be maintained only if:
- the parties were married in TX; OR
- either party is domiciled in TX
Procedure Rules
All procedure rules apply to all dissolution actions: divorce, annulment (voidable marriage) and a suit to declare a marriage void
Court may order Counseling
While a divorce action is pending, the court may direct parties to go to counseling
Counselor cannot later testify about what is discussed
*SAPCR
Suit Affecting Parent Child Relationship
If parties to a divorce proceeding are parents then must include separate SAPCR suit
Can be used to resolve: custody, visitation, child support adoption, paternity and termination of the child-parent relationship
*Persons who may bring a SAPCR
Parent, intended parent under a gestational agreement, child (through a representative), guardian, a custodian or person granted visitation by court of another state or county, governmental entity, authorized agency, and under certain circumstances a foster parent who has actual care, control and possession of the child
Grandparent or other relative may file an original suit seeing appointment as managing conservator under limited circumstances, if substantial past contact with the child
*Venue for SAPCR
When it is tied to a divorce action, the divorce venue rules control
In other cases, I should be brought in the county where the child resides
The child is deemed to reside where the parents, guardian, or foster parent resides
Venue rules cannot be modified by the parties’ agreement
*Continuing Exclusive Jurisdiction
Upon entry of a final decree in a SAPCR, the court retains contenting, exclusive jurisdiction of all parties and matters in connection with the child
Allows the court to modify all aspects of its decree
If transferred, the new court will be the place of continuing exclusive jurisdiction
*Long Arm Jurisdiction Over Nonresidents- SAPCR
There is personal jurisdiction over a nonresident for SAPCR purposes if the individual:
- was personally served in TX
- submits to the jurisdiction of TX by consent
- resides in TX with the child
- the child resided in TX as a result of acts or directives
- any other constitutional basis
Transfer of CP after divorce proceeding has been filed
If intent to injure the rights of the other spouse, than the transfer will be void
But, will not be void if transfer is to 3P with no notice
- Temporary Restraining Order (TRO)
ex parte TRO may be issued to prevent harassing actions; after notice and hearing the TRO can be extended to a temporary injunction
- Temporary Injunction
can require sworn inventories and appraisals, can exclude one spouse from the residence, can require the support of either spouse
- Protective Orders
- prima facie showing: violence has occurred or is likely to occur
- range of prohibitions: communicating with another party, going near residence or place of employment of party, engaging in harassing conduct to another party, possessing a firearm (exam tip: just name a bunch that look like they could apply based on the facts)
- -If clear and present danger that spouse will commit family violence again, a court may issue an ex parte TPO (violation will be a criminal offense)
60 day waiting period
60 days must elapse between filing of the suit and the granting of a divorce, but a decree entered in a short time is not subject to collateral attack
No waiting period if annulment (voidable marriage), void marriages, or convictions of family violence
Court ordered Alimony
Not Valid in TX, but if ordered in another state will be respected and upheld in TX through the full faith and credit clause
Different from limited spousal maintenance which is allowed
Just and Right division of Community Property
Court must order a division of property in a just and right manner- does not mean that it has to be equal
- If spouse wants to protect himself from abusive ex after divorce, what can he file?
Temporary Restraining Order
Temporary Injunction
Temporary Protective Order
Protective Order
- Duration for protective order
In Texas, the longest period for which a court
MAY issue a protective order is two years.
After two years, the parties must again have a hearing before the court to determine where the parties
stand at the time and whether a the order should be modified or re-issued at all.
