Family Law

Question 1

Requirements of a ceremonial marriage?

Answer 1

1. License

• Legal capacity to consent to marriage.
• Ceremony between 72 hrs and 90 days of license.
• 18 or older (16-17 w/ court approval or emancipation)
• Not divorced w/in last 30 days.
• Not related by consanguinity by prohibited degree.

2. Ceremony

• No particular type of formality to the ceremony.
• Can be performed by:
• Authorized officer of religious organization
• Judge
• Ceremony is valid if officiant has reasonable appearance of authority and couple has good faith.

Question 2

What is required for an informal marriage?

Answer 2

1. Cohabitation as a married couple,
2. Holding out to the public as a married couple, AND
3. Agreement to be married (oral, written, implied).

The couple can file a declaration with county clerk that creates a rebuttable presumption of marriage.

Question 3

What types of marriages are void?

Answer 3

• Bigamy (latest presumed valid, rebutted by CCE)
• Consanguinity
• Marriage to a minor
• Same Sex (statute only, SCOTUS allowed)

Putative Spouse = Innocent spouse w/o knowledge has community property rights.

Question 4

What types of marriages are voidable and how to void it?

Answer 4

• Under the influence
• Impotency (w/o knowledge)
• Fraud/Duress/Force
• Concealed Divorce (1 year SOL)
• Marriage w/in 72 hours (30 day SOL)

To void must have an in rem proceeding.

Question 5

What duties do spouses owe one another?

Answer 5

Spouses owe a duty of support.

• Each spouse has a duty to support the other
• If a spouse incurs debt for necessities (food, shelter) both spouses are liable.

Question 6

Can a spouse commit a tort against another spouse?

Answer 6

Spouses may sue each other for negligent & intentional torts (Texas no longer recognizes spousal immunity).

• Intentional Infliction of Emotional Distress
• Assault (2 year SOL)
• NOT Negligent Infliction of Emotional Distress

If spouse seeks damages for tort spouse cannot also seek unequal division of assets for fault.

Question 7

What are the grounds for divorce (no fault)?

Answer 7

Insupportability

“Marriage has become insupportable due to a discord or conflict of personalities that prevents any reasonable expectation of reconciliation.”

Question 8

What are the grounds for divorce (fault) and consequences?

Answer 8

1. Cruelty “renders living together insupportable”
2. Adultery (even after separation)
3. Conviction of a felony and imprisoned 1 year
4. Abandonment for 1 year with express intent to abandon
5. Living apart for 3 years (no intent)
6. Confinement in Mental Hospital for 3 years & relapse likely.

Question 9

How does a court obtain jurisdiction to end marriage?

Answer 9

• An “in rem” proceeding and does not require personal jurisdiction to end the marriage relationship but not divide property.
• Filing spouse must meet Texas domicile requirement

1. Domiciled in TX for 6 mos and resident of county for 90 days.

Question 10

How does a court obtain jurisdiction to divide marital property?

Answer 10

Court must have personal jurisdiction to impose obligations on respondent spouse and obtain jurisdiction of out-of-state property.

Personal Jurisdiction can be obtained by long-arm statute:

1. TX was last marital residence of both spouses & not more than 2 years since residence ended, OR
2. Any basis consistent with the constitution

Question 11

How does a court obtain jurisdiction over a child?

(SAPCR)

Answer 11

1. Personal service in Texas
2. Consent
3. Child resides in TX as result of person’s actions
4. Person resided with child in TX
5. Child conceived in TX
6. Person acknowledged paternity in TX

Question 12

What is the procedure for filing for divorce and

when can it be granted?

Answer 12

• Spouse files an original petition for divorce.
• The petition cannot be granted within 61 days of filing.
• If no answer after service of process court can grant default divorce after the 61 days from filing.

Question 13

How can a spouse protect themselves during the divorce proceeding from a non-violent spouse?

Answer 13

By obtaining a temporary restraining order (TRO)

• Can last for 14 days and can be renewed for another 14.
• Can restrain from conduct like threats, stalking, or transferring property outside of the regular course of business.
• At hearing court can determine spousal support, occupancy of property, etc.
• No criminal consequences, just civil (contempt)

Question 14

How can a spouse protect themselves during the divorce proceeding from a violent spouse?

Answer 14

The spouse can obtain a protective order in ex parte proceeding.

• PO requires a showing of family violence 1) has occurred and 2) clear and present danger violence will likely occur again.
• Can prohibit conduct such as further violence, communication, and from going a certain distance from the spouse.
• Has criminal consequences (violation of protective order).
• Can include “kick-out” - order for 20 days
  
  • Spouse must testify for kickout.
    
    • FV occured w/in last 30 days
    • Clear and Present danger will continue

Question 15

What alternative dispute resolutions are available to divorcing spouses?

Answer 15

1. Arbitration or mediation
   
   • Court can determine whether an arbitration agreement is binding.
   • Court can force mediation prior to trial
2. Collaborative Family Law Act
   
   • Parties voluntarily opt out of formal proceedings
   • Work together in good faith
   • If settlement not reached, attorneys must withdraw.
3. Informal Settlement Conference - Binding settlement agreement
4. Mediated Settlement Agreement - Court cannot overturn if meets statutory requirements.

Question 16

What must be filed in a family action regarding children?

Answer 16

A Suit Affecting the Parent-Child Relationship (SAPCR)

• Establishes the child’s possession, residence, child support, etc.

Question 17

Who may file a SAPCR?

Answer 17

1. Parent
2. Child (through representative)
3. Managing conservator
4. Guardian appointed by probate court
5. Government Entity (CPS)
6. Prospective adoptive parent
7. Alleged Father
8. Grandparent (in certain situations)

Question 18

When does a grandparent have standing to file a SAPCR?

Answer 18

Because parental rights are a fundamental liberty interest under the constitution a grandparent has limited standing.

The grandparent must establish:

1. Substantial past contact with child, AND
2. Non-access would “significantly impair the physical health or emotional development of the child.”

Question 19

Where is the proper venue for a SAPCR?

Answer 19

1. If part of divorce action, where the divorce is filed
2. If not part of divorce action, where the child resides

Question 20

When does a court lose jurisdiction over the child?

Answer 20

The court has “continuing exclusive jurisdiction” until:

1. The child moves to a new county and establishes residence for 6 mos.
2. A motion to transfer is filed with a new court.

Question 21

How does a court establish a parenting plan?

Answer 21

A court can appoint a parenting coordinator or parenting facilitator in high conflict cases.

• Parenting coordinator is a confidential relationship and cannot testify
• Parenting facilitator can testify.

Question 22

When does a parent have to pay child support?

Answer 22

• A parent has a duty to support a child until 18 years old or graduates high school, whichever comes first.
• If a child requires substantial care and personal supervision because of physical or mental disability it can exceed 18 years old if known prior to turning 18.
• Court can order child support indefinitely for disabled child.
• Does not end at death of the obligor or bankruptcy.

Question 23

How much does a parent pay in child support?

Answer 23

There is a rebuttable presumption that the statutory guidelines are reasonable.

• Based on the first $8,550 monthly net resources.
• 1 Child = 20%
• 2 Children = 25%
• 3 Children = 30%
• 4 Children = 35%
• 5 Children = 40%

Court may deviate from the guidelines based on the proven needs of the children.

Question 24

When can a court modify a child support order?

Answer 24

Court can modify if:

1. There has been a material and substantial change in circumstances; or
2. It has been 3 years since the date of the order and the modification differs by 20% or $100 a month.

Courts cannot retroactively modify child support.

Question 25

How can a court enforce a child support order?

Answer 25

1. Mandatory wage withholding (Employer Obligated)
   
   • Cannot exceed 50% of disposable income
   • Court can order additional 20% on top of normal to pay back child support, still cannot exceed 50%
2. Money judgment
   
   • Arrears automatically becomes money judgment.
   • Must be filed w/in 10 years of termination of child turning 18.
3. Suspension of drivers, hunting, or professional license.
4. Lien - Only homestead exempt, not personal property.
5. Contempt of court - 6 months and/or $500.

Court may require reasonable costs and fees to enforce.

Question 26

What types of conservatorship are there and how does court choose?

Answer 26

1. Joint managing conservatorship
   
   • Presumed to be the best plan for the children
2. Sole Managing Conservator
3. Possessory Conservator

_____________________________________________

• Conservatorship based on “best interest of the child.”
• Court can consider child’s preference if over 12 (privately in judge’s chambers).
• Strong preference that siblings kept together
• Court cannot base decision on marital status or gender.

Question 27

What are the rights of a sole managing conservator?

Answer 27

1. Designate primary residence
2. Consent to invasive medical procedures
3. Receive child support
4. Consent to armed forces
5. Education decisions

Question 28

What are the rights of a possessory conservator?

Answer 28

1. Right to manage child when in possession.
2. Fewer rights than managing conservator.
3. Can consent to emergency medical care
4. Right to be consulted by sole managing conservator about major medical decisions.

Question 29

When can a court modify a conservatorship?

Answer 29

1. Person requesting modification must show “material and substantial change in circumstances.”
   
   • i.e. Remarriage, moving, job change, child’s preference if over 12.
2. Any changes still determined based on the “best interest of the child.”
3. Can only modify within 1 year of last order if:
   
   1. Environment endangers the physical health or impairs the emotional development of the child.
   2. Primary consents
   3. Voluntary relinquishment of primary possession for at least 6 mos.

Question 30

How can a court enforce custody?

Answer 30

1. Writ of habeas corpus
   
   • Exception: parent relinquished possession for 6 mo
   • Exception: Serious, immediate question concerning child’s welfare.
2. Tort for intentional interference w/ child custody
   
   • Can recover actual damages for locating/recovery, attorney’s fees, and mental anguish.
3. Contempt - 6 mos and/or $500
4. Criminal - Kidnapping

Question 31

What is the UCCJEA?

Answer 31

Uniform Child Custody Jurisdiction and Enforcement Act

TX has jurisdiction in child custody determinations when:

1. “home state” child lived in TX for last 6 mos, or
2. No other court has jurisdiction,
3. Court of child’s home state declines jurisdiction

A court may assume temporary emergency jurisdiction in cases of abuse.

Texas will give custody orders from another state “full faith and credit” if order sent to appropriate TX court.

Question 32

When can a court terminate a parent-child relationship?

Answer 32

Court lays out grounds for termination: Requires “Best interest of the child.”

• Abandonment
  
  • Abandonment w/o intent to return
  • Voluntarily left w/o express intent to return, w/o support, and remained away for at least 3 mos
  • Voluntarily left with express intent to return, w/o support and remained away for at least 6 mos.
• Leaving a child in dangerous situation
• Pregnancy from criminal act by CCE (no discretion)
• Voluntary - Affidavit must be knowing and voluntary.

Question 33

Effect of terminating parent-child relationship?

Answer 33

• Severs parent-child relationship for nearly all purposes.
• Children may still inherit from the parent but the parent may not inherit from the child.
• Termination of parent-child relationship does not forgive back child support.

Question 34

When is a man presumed to be the father of a child?

Answer 34

1. Married to woman who gives birth to child
2. Divorce from woman who gives birth within 300 days of end of marriage.
3. Married child’s mother and voluntarily asserted paternity AND
   
   1. Files a record with the bureau of vital statistics
   2. Named on the birth certificate, OR
   3. Promises in written record to support the child.

Question 35

How can a presumed father rebut the presumption of fatherhood?

Answer 35

• Presumption can be rebutted by valid denial in conjunction with another’s valid acknowledgment of paternity OR by genetic testing.
• Paternity by estoppel - When the conduct of the mother or alleged father estops that party from later denying parentage and it would be inequitable to disprove the father-child relationship.
• Statute of Limitations
  
  • If no presumed father, no limitation
  • If presumed father, 4 years of child’s birth.

Question 36

When can a court impose preventative child safety measures?

Answer 36

• If child is at risk of international abduction the court can take safety measurings including:
  
  • Withhold passport, appoint managing conservator, require supervised visitation.
• Attorneys and other professionals have a duty to report child abuse within 48 hours of learning of it.