Family Deck Flashcards
Must a couple desiring to enter into a ceremonial marriage obtain a marriage license?
yes
When does a marriage license expire?
If a ceremony is not held within 90 days of the date it was issued
Is a medical examination required to obtain a marriage license?
No
What is the purpose of obtaining a marriage license?
To ensure the two people are able to be married under Texas law
Is a marriage license required for common law marriage?
No
Is a ceremonial marriage still valid even though a marriage license is not obtained?
Yes
Do the parties have to be residence of Texas to marry in Texas?
No
What is the 72 hour rule?
The marriage ceremony cannot take place during the 72-hour period following issuance of the marriage license
What is the exceptions to the 72-hour?
- One of the applicants is on active duty with the armed forces or performs work for the Department of Defense
- A court waives the waiting period
- The applicants have completed a premarital education course
When can a recently divorced person get remarried?
After 30 days of divorce decree or the court waives the waiting period upon showing of good cause
A divorced couple can remarry each other at anytime
What things are necessary in order to find a marriage that violated the 30-day waiting period for divorced people void? Who can it voided by?
Can be voided by the innocent party
Must be brought within one year, and the parties did not cohabit after the innocent party learns of divorce
What needs to be done to obtain a marriage license?
- Appear together or separately before the county clerk
- Submit proof of ID and and age (if under age must also provide proof establishing parental consent or court approval)
- Sign the license application under oath
Is premarital counseling required?
No but is encouraged
Can a parent give consent to marry for the child who is under the age of 16?
No, only a court can do that and only will if it found to be in the best interest of the child.
Can a retired judge conduct a marriage ceremony?
For a state judge, yes if he had at least 12 years of service
Federal - yes if 8 years service of court in that state
Can a person authorized to conduct a marriage ceremony discriminate on the basis of race, religion, or national origin against applicants who are otherwise qualified to be married?
Hell no
A judge can be removed for doing that
Is the official conducting the marriage ceremony required to elicit particular or specific information or answers from a party to the marriage?
Are the participants required to speak or respond?
No and no
Does Texas recognize informal marriage?
Yes
What must a couple do to establish an informal marriage?
- Parties must agree to be married
- Cohabitation between the parties
- Holding Out
How can a party’s agreement to be marriage be proven?
Are occasional references to “my wife” or “my husband” sufficient to support a finding of an agreement to be married?
By direct or circumstantial evidence
No it is not sufficient, non-marital cohabitation is far more common than it once was and evidence of a tacit agreement to marry must be weighed more carefully than in the past
Is a single public act, such as signing a mortgage or a credit application as “husband and wife” be sufficient enough to be considered “holding out” for the purpose of finding an informal marriage?
No, it’s all about the couple’s REPUTATION in the community.
Does he wear a ring? Does she use her maiden name?
How can a party establish the existence of a common law marriage?
Execute and record a sworn “Declaration of Informal Marriage”
What is the state’s purpose for upholding the validity of marriages?
To provide stability for those entering into the marriage relationship in good faith AND provide legitimacy and security for the children of the relationship.
Is the validity of the marriage affected by fraud, mistake, or illegality that occurred in obtaining the marriage license?
General rule is no. However, if one of the parties falsely answers a question in the license application, this constitutes evidence of fraud in the inducement that can be used to annul the marriage.
What are the three circumstances that make a marriage void?
- A marriage of parties within the prohibited degrees of consanguinity
- A bigamous marriage
- A marriage of a party under age 16 without a court order
Consanguinity; who can a person not marry?
Ancestor or descendant
Brother or sister
Nephew or niece
Aunt or uncle
First cousin
Stepchild
What happens to a marriage’s validity if the ceremony is conducted by an unauthorized person?
Marriage will still be valid if:
- There was a reasonable appearance of authority by the person conducting the ceremony AND
- At least one party to the marriage must have participated in the ceremony in good faith and treated the marriage as valid
Does consanguinity apply to adoptions?
Yes
Is a marriage void if either party was previously married and the prior marriage was not dissolved?
Yes, that is a bigamous marriage
When will a bigamous marriage become valid?
When the prior marriage is dissolved by divorce or death if the couple is still living together and holding out to be married
If it is alleged that one of the parties was already married, which marriage will be presumed valid?
The most recent one, party asserting the validity of prior marriage has the burden of proving its validity
A suit to declare a marriage void may be maintained in Texas if what?
- The marriage was contracted in Texas
OR
- One of the parties is domiciled in Texas
Is a marriage subject to challenge after the death of either party? What is the exception?
No, unless it is alleged the decedent did not have sufficient mental capacity to consent to the marriage
What is the statute of limitations for filing a suit to void a marriage due to underage?
If brought on behalf of child by a next friend - 90 days
If brought on behalf of child by parent or guardian - before the child turns 18
Is an underage marriage voidable at the court’s discretion?
Yes, the court will consider all pertinent facts
When may a marriage be annulled?
If at the time of the marriage:
- The petitioner was under the influence of alcohol or narcotics and did not have the capacity to consent to the marriage
OR
- Either party was permanently impotent and the petitioner did not know of the impotency at the time of the marriage
OR
- The other party used fraud, duress or force to induce the petitioner to enter into the marriage (like if guy only married the chick to gain citizenship and she didn’t know that)
A suit to annul a marriage may be based on incapacity of one of the parties if what?
The parties did not voluntarily cohabit after the incapacity was evident.
A marriage may be annulled based on a concealed divorce if what?
What’s the statute of limitations?
- The other party was divorced from a third party within the 30-day period preceding the marriage ceremony
- The petitioner did not know or should’ve known
- The petitioner has not voluntarily cohabited with the other party since discovering the divorce
1 year to annul
May a marriage be annulled if it violated the 72-hour rule?
Yes, within 30 days
May a marriage be annulled post-death for lack of capacity?
Yes, if
- the marriage took place within 3 years of the decedent’s death
And
- The action is filed within one year after the decedent’s death
When does Texas law apply to marriage taking place outside the state?
When the couple established domicile in Texas
So if a couple married in Ohio in 1999 and then moved to Texas in 2005 - Ohio law would apply to all the property acquired before 2005 and Texas law would apply to the property acquired thereafter the moment the couple crossed into the state with the intention to permanently reside in Texas
Does a spouse have a duty to support the other spouse?
Yes, must provide necessaries
What is a No-Fault divorce?
A divorce may be decreed without regard to fault if the marriage “has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation”
What is a defense to a no-fault divorce?
Reasonable expectation of reconciliation
What are some other rarely encountered viable grounds for divorce?
- Adultery
- Conviction of a felony with imprisonment for at least one year without a pardon
- Abandonment for more than one year
- Living apart for at least 3 years
- Confinement to a mental hospital for at least 3 years
Can damages be recovered for IIED?
Yes
Can damages be recovered for NIED
No, tort law should not attempt to provide redress for every time a spouse being a dick or a bitch
Elements for IIED?
- Defendant acted intentionally or recklessly
- Conduct was extreme and outrageous
- Defendant’s actions caused the plaintiff to suffer emotional distress
AND
- The emotional distress was SEVERE
Can the same conduct be considered for both tort recovery and just and right division of community property?
No, it would be like double recovery
Is there an independent tort cause of action between spouses for injury to the community?
No. A spouse cannot recover actual or punitive damages when the other spouse allegedly breaches a fiduciary duty by committing a fraud against the community estate. Rationale is that the wronged spouse has adequate remedy through the “just and right” division of the estate.
What are the requirements to file a petition for divorce?
- Either spouse has been domiciled in Texas for at least 6 months
AND
- Either party has resided in the county in which the suit is filed for the preceding 90-days - if not the case will be dismissed
To grant a divorce does the court have to have personal jurisdiction over the other party?
No if the durational residency test is met
Can a court award reasonable attorney’s fees in suit for dissolution of marriage?
Yes
Does a suit to annul or void a marriage require the residency requirements for divorce?
No, parties just need to be married in Texas or domiciled in Texas
When can a court exercise personal jurisdiction over a nonresident in a suit for divorce, annulment, or to declare a marriage void?
- If Texas is the last marital residence of the couple, and the suit is commenced within 2 years after the date on which the marital residence ended
- Any basis consistent with the constitutions of Texas and the US.
What must a pleading for dissolution of a marriage include?
Must contain allegations of the grounds relied on, substantially using the language of the statute
Must state whether a protective order for family violence is pending or in effect between the parties. Copy must be attached.
What must a pleading for dissolution of a marriage not include?
Detailed statement of evidentiary facts… don’t trash talk the other spouse in the pleading
Can a court order a couple to go to counseling during a pending divorce?
Yes, to see if there is a chance of reconciliation
Can marriage counselor testify, can notes be used as evidence?
Hell no, that shit is personal and privileged
Can a default judgment be given upon failure to answer?
Nope, the petitioner retains the burden of proof to establish the grounds for divorce
When is a SAPCR required to be joined with a dissolution action?
When the children are children of both spouses
May the court order a TRO ex parte?
Yes to prevent harassing acts that no reasonable person would think he would be allowed to commit (intent to annoy, falsifying records, messing with property, threats of injury, terminating insurance policies)
Can a TRO prohibit a party from spending funds for reasonable and necessary living expenses, or prohibit a party from engaging in her usual occupation?
No
After notice and hearing, a court may issue a temporary injunction for what?
- Require a sworn inventory and appraisal showing the property and debts of the parties
- Require support of either spouse
- Require the production of books and records
- Order payment of attorney’s fees and future expenses
- Appointing a receiver
- Awarding one spouse exclusive occupancy of the residence and exclusive control of the parties’ usual occupation or business during pendency of the case
In cases of family violence, after a notice and hearing, a court may issue a protective order prohibiting the respondent from what?
- Committing family violence
- Directly or indirectly communicating with a member of the family
- Going near the residence or place of employment of the party seeking the order
- Removing a child from the possession of the party
- Stalking the party
- Engaging in conduct that is likely to harass, annoy, alarm blah blah blah
- Possessing a firearm
- Complete battery intervention and prevention program
- Go to counseling
- other acts to prevent violence in the future
“Family violence” consists of what?
- An act that is intended to result in physical harm (other than reasonable discipline of a child, or threat that induces fear in family member
When is there a presumption of family violence?
- The respondent’s parental rights with respect to a child have been terminated
- The respondent is seeking contact with that child
- The respondent has been convicted of certain crimes against the child
If no divorce action is pending, where can an application for a protective order may be filed?
- The county in which the applicant resides
- The county in which the respondent resides
- Any county in which the family violence is alleged to have occurred.
How long can a TRO last? What’s the exception?
Usually two years, except for when the subject of the protective order caused seriously bodily injury to the applicant or a member of the applicant’s family or household, or was the subject of two or more previous protective orders
When is a party who has petitioned for a protective order is entitled to a temporary ex party protective order?
If the court finds a clear and present danger that the respondent is likely to commit family violence again.
How long can an ex parte TRO be enforceable?
20 days, upon motion may be extended for another 20 days
Is a violation of a TRO a criminal offense?
Yes
Can a party petition for a change of name as part of a dissolution decree?
Yes, court may not deny a change of name solely to keep last names of family members the same
At what time may a divorce be granted?
60 days after the suit was filed
What happens to a cause of action for divorce when a party dies?
It becomes moot
“Just and Right” rule statement
The court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
“Child” or “Minor”
a person under 18 years of age who is not and has not been married or had his disability of minority removed
Can a child who is at least 16 years old petition in the district court to have the disability of minority removed for limited/general purposes?
Yes if it is the child’s best interest
Is a child who marries under the age of 18 still considered a “child”?
No, effect of marriage is to remove the disability of minority
How does the marital status of the parents effect the parent-child relationship?
It doesn’t, the parent-child relationship extends equally to every child regardless of the marital status of the parents
How can a father-child relationship is established by what?
- an unrebutted presumption of the man’s paternity
- Acknowledgement of paternity
- Adjudication of paternity
- Adoption
- Consent to assisted reproduction by his wife, which resulted in the birth of the child
When will a man be the presumed father of a child?
- The child was born during the marriage (or attempted but void or voidable marriage) of the man and the child’s mother, or is born within 300 days after the marriage (or attempted marriage) is terminated by death, divorce, or annulment.
- The man married (attempted to marry) the child’s mother after the child’s birth, and he voluntarily asserted his paternity of the child.
- The man resided in the household for the child’s first two-years and represented to others that the child was his
Who can challenge a presumption of paternity? Statute of limitations? Exception to that SOL?
Action can be brought by the mother, the presumed father, or by another person seeking to establish that he (and not the presumed father) is the father of the child.
Must be brought within four years after the child’s birth.
Court will allow no time limit to bring suit if:
- The presumed father and the mother of the child did not live together or engage in sexual intercourse during the probable time of conception
OR
- The presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of fours years because of mistaken belief, based upon misrepresentations, that he was the child’s biological father.
How can the paternity of a child with a presumed father be disproved?
- Genetic test that either excludes the man as the father of the child or identity another man as the child’s father.
- By written denial of paternity by the presumed father in conjunction with the written acknowledgement of paternity by another man.
What rights do a father of non marital child if the mother not married?
Right to service in a suit affecting parent-child relationship. Can be waived with affidavit.
When may a husband challenge his paternity of a child that was born by means of assisted reproduction?
- If he commences a proceeding to adjudicate paternity within four years after the child’s birth
AND
- The court finds that he did not consent to the assisted reproduction before or after the child’s birth
What rights and duties do parents have?
- Right to custody
- Duty of care, upbringing, and discipline
- Duty of support
- Manage child’s estate
- Right to consent to marriage, military service, and medical treatment
- Right to represent child in legal actions
- Right to child’s services and earnings
- Right to receive and disburse funds for child’s support and benefit
- Other rights and powers given by law
Who may use corporal punishment?
a parent, grandparent, or stepparent or guardian
for reasonable discipline
May a parent be held liable for property damage proximately caused by their child? How?
Yes
- Damage also caused by the conduct is reasonably attributed to the parent’s negligent failure to exercise the duty of control and reasonable discipline of the child.
- Damage caused by willful and malicious conduct of a child who is age 10 or older but under 18. LIMITED TO $25,000 per act plus attorney’s fees
What is a SAPCR?
A suit affecting the parent-child relationship. Unitary action which can involve custody, visitation rights, child support, adoption, paternity, and termination of relationship.
Does a SAPCR have to be joined with a dissolution action?
Yes
Can a habeas corpus be brought as a SAPCR?
No
Who may bring a SAPCR?
- Parent (biological or adoptive or foster of 12 months), if both dead, a relative within 3rd degree
- Guardian, if guardian dies, a person with whom the child and the child’s guardian have resided with for at least six months ending not more 90 days preceding the date of the filing of the petition
- Child (through rep)
- Custodian or person granted visitation by a court of another state or country
- Govt agency
When is a transfer of a SAPCR to another jurisdiction mandatory?
When the child has moved to a new county and lived there for at least 6 months
When will Texas law govern nonresidents for SAPCR?
- The individual is personally served in Texas
- submission by consent
- The individual resided in the state with the child
- The individual resided in this state and provided support or prenatal expenses for the child
- The child resided in this state as a result of acts or directed of the individual
- the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse
- The individual registered with the paternity registry or signed an acknowledgement of paternity of a child born in this state
- There is any other constitutional basis for the exercise of personal jurisdiction
Can a court order attendance to parent education and family stabilization course?
Yes
When must a guardian ad litem be appointed?
- In suit terminating parent-child relationship
- suit removing minority
- paternity actions in which paternity by estoppel is alleged
Rights, duties, and powers of conservator?
Right to receive information about child’s health, education, and welfare
Right to confer with other parent before big decisions
Duty to inform other parent in timely manner of significant information
What rights and duties are exclusive to the managing conservator?
The right to designate the child’s primary residence
The right to the child’s services and earnings
The right make decisions concerning child’s education
The right to consent to marriage, military service
The right to consent to medical treatment
The right to receive child support and disburse them for the child’s benefit
Do courts consider gender when decided conservatorship?
No
When deciding what parent the child will live with what will the court consider?
- Physical and emotional needs of child
- Ability to reach shared decisions
- Positive relationship between the parties
- Geographic proximity to parties
- Preference of child if over the age of 12
Can a court appoint joint managing conservators if there is a history of abuse against child or other parent?
NO
When can a parent be denied access to the child?
If a history or pattern of family violence during the two years preceding the filing of the suit is shown by a preponderance of the evidence.
Unless the court finds grating access will not endanger the child and is in the best interest of the child
Can a court order additional periods of possession or access to a child to compensate for the denial of court-ordered possession or access?
Yes
Can a court enter an order that conditions the right to possession of, or access to, a child on the payment of child support?
No
What are the grounds needed to modify conservatorships?
- Modification would be in best interest of the child
- There is a material and substantial change in circumstances, a child 12 or older requests the change, or possession of the child has been voluntarily relinquished for at least 6 months - does not apply to military
Is remarriage a material change in circumstances?
Maybe, courts are split
What can the managing conservator file against a possessor conservator who withholds possession of the child in violation of a valid court order of custody?
File a writ of habeas corpus
When may a court deny a writ of habeas corpus?
If the court finds that there is a serious immediate question concerning the child’s welfare.
Can tort liability be imposed against a person who takes or retains possession of a child or conceals the whereabouts of a child in violation of a court order that gives custody or possession to the plaintiff?
Yes
may give actual and exemplary damages
When does a court have jurisdiction to enter a child custody order?
If no other state has home state jurisdiction
AND
The child and one parent have a significant connection with the state, and substantial evidence is available in the state concerning the child’s care, protection, training, and personal relationships
When does a court have temporary emergency jurisdiction?
When the child has been abandoned or it is necessary in an emergency to protect the child because the child or her sibling or parent is subjected to or threatened with mistreatment or abuse
May a grandparent file a petition for reasonable possession or access?
Yes
When may a court grant a grandparent access to a child?
- At the time the relief was requested, at least one biological or adoptive parent of the child had not had that parent’s parental rights terminated
- The grandparent has overcome the presumption that a parent in the best interest of the parent’s child by proving by preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being
- The grandparent is a parent of a parent of the child and that parent has been incarcerated in jail or prison during the 3-month period preceding the filing of the petition, has been found by a court to be incompetent, does not have actual or court-ordered possession of or access to the child, or is dead
When can a grandparent not request possession of or access to the child?
If the child is or about to be adopted by a person other than the child’s stepparent, and if each of the biological parents of the child has (1) died; (2) had the person’s parental rights terminated; or (3) executed an affidavit of waiver of interest in the child, or an affidavit of relinquishment of parental rights, and the affidavit designates an authorized agency, licensed child-placing agency, or person other than the child’s stepparent as the MC of the child.
Can a sibling of a child file an original suit requesting access to the child?
Yes if at least 18 years old
How long does a parent’s duty to support a non handicapped child last?
What about a handicapped child?
Until the child is 18 and as long as the child is enrolled in high school
Duty to support handicapped kid will last as long as that disability causes the adult child to require substantial care and personal supervision, and the adult child will not be capable of self-support.
When does a parent’s support duty terminate?
Upon child’s marriage, enlistment in the armed services, child’s death, or removal of disability
Does an parent’s duty to support end when the parent dies?
No, the remaining unpaid child support is accelerated. Claim against estate.
Can a court order the trustee of a spendthrift trust to make payments on behalf of a child to whom the trust beneficiary is under a court-ordered obligation to support?
Yes
Fixed percentages for child support depending on the number of children
1 - 20%
2 - 25%
3 - 30%
4 - 35%
5 - 40%
Over 5 children - not less than amount for 5 children
May the obligor be required to pay child support in excess of 100% of the proven needs of the child?
No
The statutory guidelines apply to what amount of the obligors net resources?
$8,550/month
Presumption of income
In absence of evidence of a party’s resources, the court will presume that the party has income equal to the federal minimum wage for a 40-hour week. This presumption does not apply if the party is incarcerated for more than 90-days.
What if the obligor parent is intentionally unemployed or under employed?
The child support guidelines will be applied to the amount the court determines that the obligor parent could earn if employed consistent with his skills and earnings potential.
Is the income of the obligor parent’s new spouse considered for child support?
No
Retroactive child support
Limited to the amount that would have been owed in the past 4 years
When can a child support order be modified?
- Material and substantial change in circumstances such as military duty
- Deviation from statutory guidelines but only if 3 years have elapsed since ordered or last modified AND the amount is different than the statutory guidelines
Can a court modify a child support order even if the parties contractually agreed to not modify it?
Yes because a provision to agree not to increase child support is against public policy
Can parents agree to settle a claim for child support without court approval?
No
Must the court order obligor to provide health and dental insurance?
Yes if it is available through the obligor’s employer or some other reasonable means
Does filing for bankruptcy relieve a parent from paying child support?
No
What is the maximum amount that can be withheld for child support?
50% of disposable income
After notice and hearing, may a court order for child support be enforced with contempt?
Yes, up to 6 months in jail and/or $500 fine
Does a parent who is held in contempt for not paying child support still owed due process?
Yes - right to be present at trial, right to counsel, “beyond reasonable doubt”
If a court orders the suspension of the obligor parent’s driver license for failure to pay child support, must it be renewed if the parent pays?
Yes unless failed to pay for 6 months or more
Is an obligor parent who is more than 30 days delinquent on child support still eligible to receive loans, grants, or contracts from the state?
No
What is the statute of limitations for past-due child support?
10 years from either the child becomes an adult or the support is terminated under the order
If the obligor parent is remarried, may the obligor’s spouse petition the court to determine the extent of the spouse’s interest in real or personal property that has been subjected to a child support lien, and to release from the lien any property found to be either solely or jointly owned, as to which a sale of the obligor’s interest would result in an unreasonable hardship upon the spouse or the obligor’s family?
Yes
If the obligor fails to pay child support, must a court order that parent to pay court costs?
Yes and movant’s attorney’s fees
it’s a must not a may
When must full faith and credit be given to a child support order?
If the court had jurisdiction over the matter and the parties AND the parties had reasonable notice and an opportunity to be heard.
When may a court order involuntary termination of the parent-child relationship?
- one of the grounds is established (neglect/abuse/etc.)
AND
- termination is in best interest of child
Both elements must be proven by CLEAR AND CONVINCING evidence
Neglect
Parent knowingly places or allows the child to remain in conditions or surroundings that endangers the child’s physical or emotional well-being.
failure to feed, clothe, or house
Abuse
Parent engages in conduct or knowingly places that child with persons who engage in conduct that endangers the child’s physical or emotional well being
When may a father petition to voluntarily terminate a parent-child relationship be filed?
Anytime after first trimester
When and how may a mother voluntarily terminate a parent-child relationship?
48 hours after birth, can be done by witnessed affidavit
It is irrevocable after 10 days
Medical report must be completed
Does termination of parent-child relationship eliminate liability for all past-due child support?
No
When may a child be adopted?
- Both parent’s died
- the parent-child relationship of each living parent has terminated
- Stepparent wants to adopt the child
When can a former stepparent adopt?
Ex: Mom and Dad divorce, mom marry’s Bob, mom then dies, Bob wants to adopt the child
- The child is at least two years old
- The parent-child relationship has terminated with respect to one parent
- Former stepparent has been child’s MC or has had actual care, possession, and control of the child for at least 6 months (if other parent consents), or 1 year (if other parent does not consent)
When is a child’s consent required for adoption?
If 12 or older
Court can waive this requirement if in best interest of the child
Who has the duty to report child abuse?
Any person have cause to believe that a child’s physical or mental well-being has been adversely affected by abuse or neglect by any person must immediately make a report.
Must a professional report suspected child abuse regardless of privilege?
Yes within 48 hours
What is the court’s duty when separating property in a divorce?
Duty to identify, characterize, evaluate, and divide community property in a just and right division.
What should the court consider when deciding to impose retroactive child support on someone?
- Had the wife attempted to notify the dude
- Did the dude know or probably know of paternity
- Would it impose an undue financial burden
- Had the dude provided any actual support
In a SAPCR, is either party entitled to a jury trial?
Yes, entitled to jury verdict
