Family Law

Question 1

When can a court exercise PJ over a defendant in a family matter?

Answer 1

In Texas, a court will look at whether personal jurisdiction is authorized by the Texas long arm statute and whether exercising personal jurisdiction would be constitutional. The Texas long arm statute authorizes PJ over a defendant for cases determining parentage, child custody, and child support when the defendant had sexual intercourse in the state and a child may have been conceived during the act.

Question 2

What does a grandparent need to prove to have standing?

Answer 2

To have standing, a grandparent must prove three things (1) that at least one of the parents is still alive (2) that they are the biological parents of the parent (ie they are the biological grandparents) and (3) that the other parent is incarcerated, dead, or otherwise unfit to be a parent

Question 3

Can a court order someone to do genetic testing? If they refuse, what are the conseuences?

Answer 3

Yes - the court can order someone to submit genetic testing when there is a paternity suit. If they refuse, they can be held in contempt of court and/or a default judgment may be entered against them declaring them as the father

Question 4

How can you refute genetic testing?

Answer 4

Genetic testing can only be refuted in 2 ways: by
1) genetic testing that refutes the initial
test results, and 2) a Written Denial of Paternity coupled with a Written Acknowledgement of Paternity by another man

Question 5

For how many years is retroactive child support reasonable?

Answer 5

four years retroactive child support is reasonable - can be rebutted by showing that the obligor tried to avoid the payments

Question 6

if the spouse succeeds in presenting evidence sufficient to show intentional under/unemployment, what must the obligor then do?

Answer 6

the obligor must respond with evidence showing reasons other than the intent to avoid child support.
ex. Jack showed that he was depressed and couldn’t take the stress of the job - that is sufficient to show he didn’t intend to avoid child support

Question 7

If a court deviates from the statutory child support guidelines, what do they need to show?

Answer 7

they must produce specific findings of fact stating the monthly net resources of both parents, the amount of child support it is awarding, and the specific reasons it has deviated from the guidelines

Question 8

If a spouse uses their own separate property to purchase property and puts title in both spouses names, what do they need to show if they didn’t mean it to be a gift?

Answer 8

The purchaser must show some evidence of

why the property was taken in both spouses’ names other than to give a gift

Question 9

Common law marriage (informal marriage requirements) & SOL

Answer 9

(1) intend to be married
(2) cohabitated
(3) held themselves out to be married

If the couple separates and ceases to cohabitate for two years there is a presumption that no common law marriage exists because the couple never truly intended to be bound by marriage.

Question 10

Domestic violence and custody full rule

Answer 10

In determining the issue of a conservatorship, the primary test is the best interest of the child. The Texas Family Code imposes special rules where there is a history of domestic violence committed by one of the parties. In awarding custody, the court is required to consider evidence of the intentional use of abusive physical force by one of the parents against the child’s other parent. Moreover, the statute explicitly provides that joint managing conservators cannot be appointed if there is a history or pattern of such physical abuse. If one parent is appointed sole managing conservator, as a general rule, the other parent is named possessory conservator, with visitation rights along the lines of the standard possession order. However, the court may not allow a parent to have 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 (i) finds that awarding access will not endanger the child’s physical health or emotional welfare and is in the child’s best interest, and (ii) enters a possession order that is designed to protect the safety and wellbeing of the child and any person who has been a victim of family violence.

Question 11

When is paternity presumed

Answer 11

Texas family code - presumptive father would need to (1) be married to the mother at the birth (2) married the mother or shortly thereafter and took an affirmative step to demonstrate he was the parent (like putting his name on the birth certificate) or (3) lived with the child for the first 2 years of life and held himself out to be the father

Question 12

what’s the SOL for a paternity suit?

Answer 12

4 years

Question 13

When does parternity by estoppel arise

Answer 13

When parties have conducted themselves in a way that establishes acceptance of paternity, they may be estopped from denying paternity later

Question 14

When is a reimbursement claim most often utilized

Answer 14

when one spouse has used community funds to pay down a separate property debt

Question 15

What happens when when one spouse has used community funds to pay down a separate property debt

Answer 15

the court may award a reimbursement to the other spouse for half of the community funds used to pay off the other spouse’s property debt

Question 16

Can a court offset certain things when dividing property (ex. someone paid child support accidentally, so the court doesn’t award a claim for reimbursement b/c it all equals out in the end)

Answer 16

No! Child support should never be used to offset reimbursement claims

Question 17

How long can a court order a protective order for

Answer 17

A court may issue a protective order for up to two years upon a showing that family violence has occurred and likely will occur again. If the court renders a protective order that exceeds two years, it must include in the order a finding.

Question 18

How long does the subject of a protective order need to wait before they can request a review from the court

Answer 18

one year

Question 19

When can a court issue a protective order

Answer 19

a showing that family violence has occurred and likely will occur again. protective order may also be issued by the court if the person who is subject to the order (1) committed an act constituting a felony involving family violence regardless of charge or conviction, (2) caused serious bodily injury, or (3) was the subject of two or more previous protective order

Question 20

When is a spouse considered intentionally underemployed or unemployed?

Answer 20

when a spouse deliberately underemployed himself or refused to look for employment compatible with his education and ability to avoid paying child support

Question 21

Under Texas Family Code, any debts incurred during a marriage are presumed to be debt of the __________ estate

Answer 21

community estate

Question 22

Is a loan considered a gift or community property?

Answer 22

A loan is considered community property b/c it is a debt

Question 23

the loan would be best characterized as ______managed community property because Jane was not involved in the loan and the advances were deposited into a checking account managed solely by Bob

Answer 23

Sole management community property

Question 24

What does the court consider when it thinks about the best interests of the child

Answer 24

the court will look at factors such as abuse of the child, child’s physical health and emotional development, acts or omissions by either party, allegations of child abuse or neglect, current home environment, or other factors relevant to the child’s relationship with their parents

Question 25

for the court to appoint someone else as managing conservator, what 2 things must occur:

Answer 25

EITHER: the parents must sign a voluntary affidavit relinquishing parental rights or the parents rights must have been involuntarily terminated

Question 26

What was the US Supreme Court’s decision in Troxel

Answer 26

Parents have a right under substantive due process to make certain parental decisions free from governmental interference, including the decision to deny family members access to the child

Question 27

Aunt and uncle are denied access to a child. Any rights?

Answer 27

Nope - under Troxel, parent has a right to determine who has access to the child - there is a statutory presumption that the parent is acting in the child’s best interest (gparents can overcome presumption by showing a preponderance of the evidence that denying access substantially impairs the child’s well-being.

Question 28

What can you prohibit someone from doing in a protective order?

Answer 28

i) Committing future acts of family violence;
ii) Stalking;
iii) Communicating directly or indirectly;
iv) Being within a proscribed distance from the residence, child-care facility, school, or place of employment of a protected family member;
v) Possessing a firearm; or
vi) Harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal.

Question 29

What’s a TRO? When is it granted and for how long?

Answer 29

A court may grant a temporary protective order (TRO) upon consideration of a petition for a protective order

Question 30

What are stock options considered?

Answer 30

If the options are received during marriage, they are community property even if they do not become exercisable until after the divorce

Question 31

How do you calculate stock options when they are aren’t exercisable until after the marriage has dissolved?

Answer 31

Options that are granted to the spouse before or during the marriage, but that may not be exercised until some future date after the marriage is dissolved, are fractionally the separate property of the spouse receiving the options. This fractional ownership depends upon the elapsed time periods during which the receiving spouse was not married

Question 32

Can you make a gift to the community in Texas?

Answer 32

No –> if an attempted gift to the community is made, it will be considered 1/2 separate and 1/2 separate or 1/2 -1/2 tenants in common on real property

Question 33

In a no-fault divorce, can the court look at which party is more culpable?

Answer 33

No!

Question 34

If a grandparent has standing, what is the process they need to go through to file a suit for conservatorship/access

Answer 34

they must file in the court of continuing exclusive jurisdiction with an affidavit setting forth the relevant facts

Question 35

Under Texas law, parents are appointed either ______________ conservators or _________ conservator

Answer 35

joint managing and managing

Question 36

What rights does a managing conservator have

Answer 36

To make decisions for the child and designate primary residence

Question 37

For a grandparent to be awarded access, what would they need to show

Answer 37

(1) standing (3 factors outline elsewhere)

(2) That denial of access will significantly impair the emotional health or well-being of the children