Family Law

Question 1

Adoption:

Under what circumstances can the ex-spouse of a parent adopt the parent’s child

Answer 1

1) The child is at least 2 years old
2) The parent-child relationship has been terminated with respect to one parents
3) The ex-spouse has been the child’s managing conservator or has had actual care, possession, and control of the child for at least six months (if the nonterminated parent consents to the adoption), or at least one year (if the nonterminated parent does not consent to the adoption)

Question 2

Adoption:

What rules apply to a military service member’s petition for adoption?

Answer 2

In a suit for adoption, the fact that a petitioner is a member of the armed forces may not be considered by the court, or any person performing an adoption evaluation or home screening, as a negative factor in determining whether the adoption is in the best interest of the child or whether the petitioner would be a suitable parent

Question 3

Adoption:

What if the prospective adoptive parent or child cannot attend the adoption hearing?

Answer 3

Attendance at the adoption hearing is required.

If joint petitioners are husband and wife it would be unduly difficult for one of the petitioners to appear at the hearing, the court may waive the attendance of that petitioner if the other spouse is present.

A child to be adopted who is 12 years of age or older shall attend the hearing. The court may waive this requirement in the best interest of the child.

Question 4

Adoption:

What are the legal requirements to adopt a child age 14 and older?

Answer 4

Child must consent to adoption.

A child to be adopted who is 12 years of age or older shall attend the hearing for adoption.

Question 5

Adoption:

What are the rules for step-parent adoption?

Answer 5

The Health, Social, Educational, and Genetic History Report is not required. If step-parent is married to child’s parent, child’s parent must join in adoption proceeding.

Question 6

Bankruptcy:

Does a bankruptcy filing during the pendency of divorce stay the proceeding?

Answer 6

The family court retains the authority to dissolve the marriage, but the court may not divide the marital assets or enter a final order for support while the bankruptcy stay is in place.

Question 7

Bankruptcy:

While an automatic stay is in place, may the family court order the petitioner to make mortgage payments?

Answer 7

The court cannot require bankruptcy petitioner to pay the mortgage payments while the automatic stay is in effect.
The purpose of the automatic stay is to give the debtor a “breathing spell” so that the debtor can reorganize or liquidize its debts.

Question 8

Character of Assets:

Describe each spouse’s separate/community property interests in the listed assets.

Answer 8

Answer varies by asset.

Separate Property:

• Owned by spouse before marriage.
• Acquired during marriage by gift, will or inheritance.
• Purchased during marriage with separate funds.
• Community property partitioned or exchanged by written agreement.

Community Property:

• Salary and wages.
• Income from separate and community property.
• Assets acquired during marriage.
• Assets acquired on credit during marriage.
• Assets on hand at dissolution of marriage.

Question 9

Character of Assets:
What portion of a personal injury settlement is community property when settlement funds include pain and suffering? Mental anguish? Medical expenses and loss of earning capacity?

Answer 9

Personal injury judgments and recovery are Separate Property, save any portion allocated as compensation for lost wages.

Question 10

Character of Assets:

Is a gift to one spouse from another, purchased with separate property, a community property asset?

Answer 10

All gifts are separate property. A gift from one spouse is presumed to include all income from said gift, unless otherwise agreed

Question 11

Character of Assets:

Is a gift to one spouse from another, purchased with community property, a community property asset?

Answer 11

All gifts are separate property. A gift from one spouse to another is presumed to include all income from said gift, unless otherwise agreed.

Question 12

Character of Assets:

What factors give rise to a presumption of community property

Answer 12

All property on hand upon dissolution of marriage is presumed to be community property unless a spouse overcomes the presumption by clear and convincing evidence.

Question 13

Character of Assets:

Characterize an asset purchased with separate property but titled in both spouses names.

Answer 13

Presumptively a gift from one spouse to the other. When a spouse gives a gift, it is rebuttably presumed that all income from SP gift is intended to be SP of receiving spouse

Question 14

Child Custody:

Is it judicial error to split siblings in a custody award?

Answer 14

Yes, unless it is in the best interest of the child to do so.

Question 15

Child Custody:
Did the court err in making a custody award based on the gender of the parent (placing children with the parent of the same gender)?

Answer 15

The statute requires that neither party be favored on account of gender or marital status.

Question 16

Child Custody:

When MAY a court interview a child in chambers

Answer 16

Court MUST interview a child 12 years old and older upon request.
Court MAY interview a child under 12 years; but the child’s preference is not binding

Question 17

Child Custody:

What is the procedure for grandparents to seek possession or access to grandchildren?

Answer 17

File an original petition (SAPCR)
OR
File a motion to modify if an order has already been issued.

In the petition or motion the grandparent(s) must provide an affidavit that contains supporting facts and an allegation that denial of possession of or access to the child by the petition would significantly impair the child’s physical health or emotional well-being.

The court shall deny the relief sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized.

Question 18

Child Custody:

What are the evidentiary requirements for grandparents to seek managing conservatorship of grandchildren?

Answer 18

When both natural or legal parents of the child must be dead, it remains within the court’s discretion to appoint a grandparent (or aunt or uncle) as managing conservator.

Question 19

Child Custody:

What are the evidentiary requirements for grandparents to seek possession or access to grandchildren

Answer 19

The grandparent must submit an affidavit on knowledge or belief that contains:

1) Supporting facts
2) the Allegation that denial of possession of or access to the child by the petitioner would significantly impair the child’s physical or emotional health.

The Court shall deny the relief sought and dismiss the suit unless the Court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized.

Question 20

Child Custody:

May the court award possession or access to a grandparent over a living parent’s objection?

Answer 20

The grandparent requesting possession of or access to the child has overcome the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that:

1) The denial of possession of or access to the child would significantly impair the child’s physical or emotional health;
2) The grandparent is the parent of the child’s parent who has been incarcerated; been declared incompetent; is deceased; or does not have judicial access to or possession of the child

Question 21

Child Custody:

Did the court err in appointing one parent managing conservator?

Answer 21

The court MUST appoint both parents as joint managing conservators, unless the Court finds that it would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.

In that event, the Court may appoint one parent as sole managing conservator.

Question 22

Child Custody:

Do a child’s aunts and uncles have standing to seek conservatorship?

Answer 22

Yes. When both natural or legal parents of the child die, it remains within the court’s discretion to appoint a grandparent (or aunt or uncle) as managing conservator

Question 23

Child Custody:

Do grandparents have standing to seek managing conservatorship? Under what circumstances?

Answer 23

Yes. When both natural or legal parents of the child die, it remains within the court’s discretion to appoint a grandparent (or aunt or uncle) as managing conservator.

Question 24

Child Custody:

What shall the court consider in determining conservatorship?

Answer 24

The best interest of the child.

Holley v. Adams factors:

1) Desires of the child
2) Emotional and physical needs of the child now and in the future
3) Emotional and physical danger (of one parent) to the child now and in the future
4) Parental abilities of the individuals seeking custody
5) Programs available to assist the parents
6) Plans for the child by these individuals
7) Stability of both parties’ homes and any acts or omissions of a parent which may indicate that the existing parent-child relationship is not a proper one
8) Any excuse for the acts or omissions of a parent.

Question 25

Child Custody:

Do grandparents have standing to seek possession?

Answer 25

Yes.

Question 26

Child Custody:

What must grandparents show to seek possessory conservatorship?

Answer 26

The court may order reasonable possession of or access to a grandchild by a grandparent if:

1) At least one biological or adoptive parent of the child has not had that parent’s parental rights terminated
2) The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of or access to the child would significantly impair the child’s physical health or emotional well-being
3) The grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child: (i) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition; (ii) has been found by a court to be incompetent; (iii) is dead; or (iv) does not have actual or court-ordered possession of or access to the child

Question 27

Child Custody:

When is the standard possession order presumed NOT to be in the best interest of the child?

Answer 27

Standard possession order is presumed in the best interest for children who are 3 years old and older.
Standard possession order is not deemed in the best interest of the child.

Question 28

Child Custody:

Did the court err in appointing one parent as managing conservator?

Answer 28

Joint Managing Conservatorship is presumed in the best interest of the child; and may only be overcome by clear and convincing evidence.

Question 29

Child Custody:

Under what circumstances may a court modify a child custody award?

Answer 29

Special needs of the child.

Question 30

Child Support:

May a court grand an order for retroactive child support reduction?

Answer 30

Yes, the court may modify an order that provides for child support if the circumstances of the child, or the parent paying support, have materially and substantially changed.

The way to address this issue is to file a Motion to Modify the child support payment.

A parent has a monthly court ordered obligation to pay child support that continues to accrue unless the order is changed.

The court has the discretion to retroactively reduce the child support obligations back to the date of filing or when the parent receiving support is given notice.

Question 31

Child Support:

May a parent have seven years to pay off child support arrearages?

Answer 31

A child support order is enforceable for 10 years after the child becomes an adult or for an indefinite period if CPS is involved.

Question 32

Child Support:

Apply child support guidelines.

Answer 32

Child support guidelines apply to the monthly net resources of the obligor.

Statutory Guidelines are:
1 Child: 20% of obligor’s net resources
2 Children: 25% of obligor’s net resources
3 Children: 30% of obligor’s net resources
4 Children: 35% of obligor’s net resources
5 Children: 40% of obligor’s net resources
Over 5 children: Not less than amount of 5 children

Net resources capped at $8,550/Month or less

Question 33

Child Support:

Identify ways to collect delinquent child support.

Answer 33

1) Mandatory withholding
2) Suspension of licenses and disqualification for state loans and contracts
3) Enforcing a child support lien
4) Obtaining a money judgment with 6% interest
5) Freezing assets
6) Seeking a contempt order

Question 34

Child Support:

If paternity is established after a child is an adult, what child support obligations exist?

Answer 34

The court retains jurisdiction to render a contempt order for failure to comply with the child support order if the motion for enforcement is filed within TWO YEARS after:

1) The child becomes an adult; or
2) On which the child support obligation terminates under the order or by operation of law

The court retains jurisdiction to confirm the total amount of child support arrearages and render a cumulative money judgment for past-due child support, if a motion for enforcement requesting a cumulative money judgment is filed not later than the 10th anniversary after the date:

1) The chid becomes an adult; or
2) On which the child support obligation terminates under the order or by operation of law

Question 35

Child Support:

What are the obligations to support a disabled child?

Answer 35

Obligor must pay child support for the life of the disabled child

Question 36

Child Support:

What is the effect of undermployment or intentional unemployment on child support obligations?

Answer 36

If the obligor parent is intentionally unemployed or underemployed, the child support guidelines are applied to the amount the court determines that the obligor parent could earn if employed consistent with his skills and earning potential.

The Texas Supreme Court expanded this rule by holding so even when there is no proof that the obligor’s underemployment is for the purposes of avoiding child support.

A trial court must engage in a case-by-case determination to decide whether child support should be set based on earning potential as opposed to actual earnings. Once the obligor has offered proof of his current wages, the obligee bears the burden of demonstrating that the obligor is intentionally unemployed or underemployed. If the obligee fulfills that burden, the burden then shifts to the obligor, if necessary, to offer evidence in rebuttal.

Question 37

Child Support:

Will a child’s receipt of social security benefits offset a disabled parent’s child support obligations?

Answer 37

In applying the child support guidelines for an obligor who has a disability and who is required to pay support for a child who receives benefits as a result of the obligor’s disability or old age, the court shall apply the guidelines by determining the amount of child support that would be ordered under the child support guidelines and subtracting from that total the amount of benefits or the value of the benefits paid to or for the child.

Question 38

Child Support:

Does a court retain jurisdiction to enforce a child support order after the child turns 18?

Answer 38

Yes. Two years after 18 or after obligation to pay child support terminates unless child is disabled

Question 39

Child Support:

May the income of an obligor’s spouse be considered in calculating net resources

Answer 39

No.

Question 40

Child Support:

When may court exceed guidelines in issuing a child support order?

Answer 40

Evidentiary standard is proven needs of the child.

MEMORIZE: PROVEN NEEDS OF THE CHILD

There is a rebuttable presumption that a support order tied to the statutory guidelines is reasonable and in the child’s best interest.

Question 41

Child Support:

What factors may a court consider in determining an award of child support?

Answer 41

1) Special Needs of Child
2) If the obligor parent has children in more than one household
3) Net resources

Question 42

Child Support:

Do grandparents have standing to seek child support?

Answer 42

If they are appointed managing conservator, yes; otherwise no.

Grandparents do not have standing to file petition for support or enforcement on behalf of the child or parent of the child.

Question 43

Child Support:

Do child support obligations survive the death of the obligor?

Answer 43

Yes.

Court-ordered child support obligations survive the obligor’s death.

If a parent was ordered to pay child support and subsequently dies before the child reaches adulthood, the amount to be paid over the remainder of the child’s minority is accelerated and the estate must pay a liquidated amount on behalf of the child.

If an agreement between the obligor’s estate and a party representing the child can’t be reached, a court considers a number of factors to determine how much is owed.

Question 44

Child Support:

When does the support obligation for a disabled child end?

Answer 44

Parents have a perpetual obligation to support a disabled child.

Question 45

Child Support:

Is there a limit on the maximum amount of child support that may be ordered?

Answer 45

No if proven needs of the child merit; but obligor must be left with amount sufficient to maintain his or her reasonable needs.

Question 46

Community Property:
Does a spouse have claim to land purchased during marriage, but purchased and titled in the name of a separate property corporation?

Answer 46

If the business entity acquiring the land is a community property asset, then the land acquired will also be community property

Question 47

Community Property:

Does a spouse have authority to sell assets during the pendency of a divorce action?

Answer 47

After the petition for dissolution is filed, a transfer of community property or the incurrence of a community obligation is void with respect to the other spouse if there is an intent to injure the rights of the other spouse, but it is not void with respect to third parties if they have no notice. Notice to third parties can be given by filing a lis pendens

Question 48

Community Property:

May a court properly offset a reimbursement claim with child support payments?

Answer 48

No

Question 49

Community Property:

When loans to one spouse presumed or implied to be loans to the couple (community)?

Answer 49

When loans is from one spouse to another or from parent(s) of one spouse - presumption is gift or individual loan. That presumption may only be overcome by clear and convincing evidence to the contrary.

Question 50

Community Property:

Can a court compel a spouse who remarries to use community property assets to pay child support obligations?

Answer 50

Yes and no.

Income = CP
Court can compel child support order against spouse’s earnings

Question 51

Community Property:

Identify reimbursement claims with respect to claims of economic contribution

Answer 51

Answer varies by asset.

Buzz word: A claim for reimbursement is a claim in equity, not of right.

Question 52

Community Property:

Does name on deed of title of property create presumption of Sole Management CP?

Answer 52

Yes

Question 53

Community Property:

How may a spouse overcome presumption that an asset is community property?

Answer 53

Clear and convincing evidence

Question 54

Creditor’s Claims:

Which assets may creditors reach to satisfy judgments?

Answer 54

Creditor’s may reach anything post divorce, that they could have reached prior to divorce

Question 55

Divorce Decree:

What is the limitations period to enforce a divorce decree?

Answer 55

There is a two-year statute of limitation to file a suit to enforce against a former spouse.

Question 56

Divorce Decree:

What is the limitations period to modify a divorce decree?

Answer 56

A petition to modify a divorce decree can be filed one year after the Decree was signed by the Judge if there are substantial and material changes that justify a modification

Question 57

Divorce Decree:

While an automatic stay is in place, may the family court enter a final decree of divorce or divide the marital estate?

Answer 57

Divide the estate - yes

Enter final decree - no

Question 58

Economic Contribution:

What is the value of one spouse’s economic contribution? Do Texas courts consider economic contribution?

Answer 58

Not anymore!

Question 59

Family Violence:

What is the standard for the issuance of protective order?

Answer 59

Memorize: Family violence has occurred and likely to occur again

After notice and a hearing, and upon a showing that family violence has occurred and is likely to reoccur, the court may issue a protective order prohibiting the respondent from: committing family violence; directly or indirectly communicating with a member of the family; going near the residence or place of employment of the other party; removing a child from the possession of the other party; stalking the party; engaging in conduct that is likely to harass, annoy, or embarrass the part; and/or possessing a firearm.

If the court finds a clear and present danger that a spouse will commit family violence again, a court may issue an ex parte temporary protective order.

Question 60

Family Violence:

What penalty may be imposed for disregarding a protective order?

Answer 60

Violation of a protective order is a criminal offense.

-If an order for emergency protection (MOEP) is violated, the respondent is subject to arrest.
If a temporary ex parte protective order is violated, it is enforceable only through civil contempt. However,
if another crime is committed, the respondent may be arrested for that crime.
-If the respondent violates the criminally enforceable parts of a final protective order, he is subject to arrest.
-If the civilly enforceable provisions of the final order are violated, it is enforceable through civil contempt.

Question 61

Family Violence:

May a protective order last 5 years?

Answer 61

A permanent protective order is effective for the time period stated in the order, which is a maximum of 2 years.

Exceptions if:

• The abuser committed an act that would be considered a felony offense involving family violence even if the abuser was never charged with or convicted of the offense
• Abuser caused serious bodily harm
• Petitioner had two or more protective orders issued against the abuser in the past AND in each of the those prior cases, the judge found that the abuser committed family violence and was likely to commit family violence in the future

Question 62

Family Violence:

May an ex-spouse seek a protective order after divorce?

Answer 62

If a final order has been rendered in a suit for a dissolution of marriage or SAPCR, an application for a protective order by a party to the suit against another party to the suit filed after the date the final order was rendered, and that is: (1) filed in the county in which the final order was rendered, shall be filed in the court that tendered the final order; and (2) filed in another county, shall be filed in a court having jurisdiction to render a protective order

Question 63

Family Violence:

What must a spouse show in order for a protective order to be issued?

Answer 63

Applicant must attach a copy of divorce decree or statement that divorce decree is unavailable and reason therefor

Question 64

Family Violence:
What is the effect of family violence on child custody? Is there a difference between an allegation of family violence and a conviction?

Answer 64

The court may not appoint JMC if credible evidence is presented of a history of patterns of past or present child neglect, or physical or sexual abuse

Question 65

Future Earnings:

Identify arguments for and against one spouse’s claim to future earnings paid as guaranteed annuity (post divorce).

Answer 65

If entitlement to future earnings or annuity accrued during marriage. Court may apportion annuity payment as part CP and part SP

Question 66

Informal Marriage:

Can parties to avoid a ceremonial marriage, enter into an informal marriage?

Answer 66

Yes

Question 67

Informal Marriage:

What facts establish informal marriage?

Answer 67

Parties (i) agreed to be married, (ii) lived together in Texas as spouses (cohabitation) and (iii) represented to others that they were married (holding out).

A single public act, such as signing a mortgage as “husband and wife” may support a finding of a common law marriage.

However, occasional introductions as spouses are generally not sufficient to establish the element of holding out of the couple did not thereby have a reputation in the community for being married.

Presumption against common law marriage if action is not brought within 2 years after parties separate. Presumption arises that the parties had not agreed to be married.

Parties can execute a sworn “Declaration of Informal Marriage” to prove an already established informal marriage.

Question 68

Judicial Error:

When may the court make additional findings of fact and law after the entry of a divorce decree?

Answer 68

1 year

Question 69

Judicial Error:

Must a court issue findings of fact before signing a child support order?

Answer 69

Yes, the Texas Family Code provides that in rendering an order of child support, the court shall make the findings required by the Code if the amount of the child support ordered varies from the guidelines.

Question 70

Paternity:

Can the court order an alleged father to submit to genetic testing?

Answer 70

Yes.

In order to adjudicate parentage, the Court must order the presumed father to submit to genetic testing, as long as it is requested.

Courts may refuse to order genetic testing when the child has a presumed father and the conduct of one of the parties estops them from denying parentage and it would be inequitable to disprove the father-child relationship.

Question 71

Paternity:

Does the Court have personal jurisdiction against a non-resident for paternity suit?

Answer 71

Yes.

When deciding whether it has personal jurisdiction over a nonresident defendant, a court will look to see if there is a long arm statute that authorizes personal jurisdiction under the facts of the case and whether the exercise of personal jurisdiction is constitutional.

According to the Texas long arm statutes, Texas courts may assert personal jurisdiction over nonresidents for purposes of determining parentage, child custody, and child support obligations when the nonresident had sexual intercourse in Texas and the child may have been conceived during that act.

Personal jurisdiction must have minimum contacts with the forum state such that the forum’s exercise of personal jurisdiction over the defendant would be fair and reasonable. Minimum contacts = purposeful availment, foreseeable that defendant could be subject to a lawsuit in the forum based on those contacts

Question 72

Paternity:

What if an alleged father refuses to submit to genetic testing?

Answer 72

1) The Court can hold the alleged father in contempt
2) The Court can adjudicate him the father based on his refusal to provide a genetic specimen
3) If there was some good cause for not supplying the specimen, then the court could order one or more of the alleged father’s relatives to provide a specimen if it concluded that the need for genetic testing outweighed the legitimate interests of the relatives.

Question 73

Family Violence:

May a court award damages for assault and battery in a divorce decree?

Answer 73

No, but the court may order a disproportionate division of community property in favor of the harmed spouse.

A divorcing spouse can recover for the other spouse’s intentional infliction of emotional distress, but no recovery is allowed for negligent infliction of emotional distress. Note that in dividing the community estate, fault can be considered, but a spouse cannot recover both tort damages and a disproportionate division of the community estate based on the same conduct. There is no independent tort cause of action between spouses for injury to the community estate.

Question 74

Jurisdiction:

Does a court retain jurisdiction to enforce a child support order after the child turns 18?

Answer 74

Yes

Question 75

Jurisdiction:

What is the standard for involuntary termination of parental rights?

Answer 75

Clear and convincing evidence that (i) one of the grounds for termination below is established and (ii) termination is in the best interest of the child.

1) Neglect
2) Previous Termination
3) Abuse
4) Parental misconduct
5) Use of controlled substances in manner that endangers the child
6) Failure to support for one year
7) Abandonment
8) Imprisonment for more than 2 years

Question 76

Jurisdiction:

Once a SAPCR is transferred, can the new court modify an order issued by a prior court?

Answer 76

Yes

Question 77

Jurisdiction:

What relief may an appellate court grant if the court determines that a divorce decree is erroneous?

Answer 77

Non. An appellate court must remand the matter to the district court; it may not make any division or distribution of the marital estate

Question 78

Just and Right Division:

May a court exercise just and right divisions over SP assets?

Answer 78

No, a court may not reach any spouse’s SP except to provide for child support

Question 79

Just and Right Division:

What claim, if any, may a spouse assert to object to disproportionate division of the community estate?

Answer 79

None, unless court issues finding of fact

Question 80

Just and Right Division:

Does just and right division require a 50-50 split of marital assets?

Answer 80

No, just and right division

Question 81

Loss of Consortium:

Is recovery for loss of consortium separate or community property?

Answer 81

Separate property

Question 82

Oil and Gas Royalty:

Are O&G continuing royalty income payments separate or community property?

Answer 82

Community property

Question 83

Parental Rights:

Can the spouse of one parent adopt a child without first terminating the rights of the other natural parent?

Answer 83

No.

Question 84

Parental Rights:

Is sexual assault grounds for termination of parental rights?

Answer 84

Normally, one of the grounds for terminating parental rights is that the perpetrator commits sexual assault, causing the victim to become pregnant. But a special rule applies if the parents were married or cohabited for two years after the birth. To terminate in this case, the court must find by clear and convincing evidence that termination is in the child’s best interest, that the child was born from a sexual assault, and that the parent has been convicted of sexual assault.

Question 85

Parental Rights:

What is the evidentiary standard for involuntary termination of parental rights?

Answer 85

The court must find by clear and convincing evidence that termination is in the child’s best interest

Question 86

Parental Rights:
May a court terminate parental rights for failure to meet child support obligations?

(Frequently tested topic)

Answer 86

It is grounds for termination if the parent failed to support the child for a one-year period. This ground is generally used by one parent against the other parent after court-ordered child support has been ignored for a long time. Indigence may be a defense.

Question 87

Partition Agreement:

Does the Texas Family Code allow a married couple to partition or exchange community property?

Answer 87

Cannot make partitions or agreements as to CP in premarital agreement

Question 88

Partition Agreement:

May future income and after acquired property be so partitioned?

Answer 88

Yes.

A Partition Agreement can:

1. Identify now existing or after-acquired property as a spouse’s separate property;
2. Transfer the separate property of one spouse to become the separate property of the other spouse; and,
3. Provide that each spouse’s future income from his or her separate property remains that spouse’s separate property (i.e. the normal rule is that income from separate property is community property; this provision alters that rule).

Question 89

Partition Agreement:

List all statutory and common law defenses to oppose a partition of community property.

Answer 89

Unenforceable if it was not executed voluntarily; or if it was unconscionable when made and (i) no fair disclosure was given of the property or obligations of the other party , (ii) the right to disclosure was not waived in writing, and (iii) the party had no adequate knowledge of the property or financial obligations of the other party.

The issue unconscionability is decided by the court as a matter of law; it is not a jury question. “Unfairness” short of unconscionability does not make the agreement unenforceable.

Common Law Defenses:
Fraud, Duress, Undue Influence

Question 90

Paternity:
Is there a presumption of paternity when a party other than the mother’s husband is alleged to be the father of the child?

Answer 90

A man is presumed to the the father of a child if (1) a child is born within 300 days of marriage or attempted marriage; (2) child born before marriage and alleged father signs acknowledgement, voluntarily signs birth certificate, etc.; (3) alleged father lives with the child for the first two years of the childs life and represents to others that the child is his.

Question 91

Paternity:

May alleged father assert rights to a child if presumed father denies paternity in a SAPCR?

Answer 91

Yes, but only after the alleged father submits an acknowledgement of paternity, but not before. A valid acknowledgement of paternity filed with the vital statistics unit is the equivalent of an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties of a parent. A valid denial of paternity filed with the vital statistics unit in conjunction with a valid acknowledgement of paternity is the equivalent of an adjudication of the nonpaternity of the presumed father and discharges the presumed father from all rights and duties of a parent.

Question 92

Paternity:

How many the genetic testing be refuted?

Answer 92

If the genetic testing rebuttably identifies the presumed father as the father (by determining that his probability of paternity was at least 99% and his paternity index was at least 100 to one), and that testing was done in an accredited lab and meets the other basic requirements of genetic testing, the presumed father has limited options.

He can rebut those results only by presenting the results from other genetic tests that either exclude him as the genetic father or identify another man as the genetic father. If there is a dispute about the race or ethnicity, then he can require the lab to recalculate the probability of paternity using different racial or ethnic group data base than the lab originally used.

Absent this evidence, the statute demands that courts must adjudicate the presumed father to be the father.

Question 93

Paternity:

If there is a presumption of paternity, what must be plead and proven to rebut the presumption?

Answer 93

There is a 4 year SOL to challenge presumed paternity unless:

(1) parties did not reside with or have relations during the time of conception;
(2) presumed father believed the child was his biological child due to misrepresentations by mother

Paternity is established by genetic testing. If a test shows that an alleged/presumed father is not the father, the court shall enter an order that he is not the father.

The Court can apply paternity by estoppel and disallow disproval of paternity when a party with knowledge continues to act as a parent.

Question 94

Paternity:
Is a biological father precluded from establishing a parent-child relationship if the mother was married at the time of the child’s birth?

Answer 94

No, but once paternity is established, the biological parent must terminate the parental rights of the husband and adopt his biological child.

Question 95

Premartial Agreement:

What is the limitation period to enforce a premartial agreement?

Answer 95

SOL is tolled during the marriage of the parties, but equitable defenses such as laches and estoppel are available.

Question 96

Premartial Agreement:

When is a premarital agreement enforceable?

Answer 96

Must be in writing and signed by both spouses, but no consideration is required. During the marriage, the agreement can be amended or revoked only by a writing signed by both parties.

Question 97

Premartial Agreement:

May a court still exercise its power of just and right division over property not included in premarital agreement?

Answer 97

Yes

Question 98

Premartial Agreement:

What is the effect of undue influence or coercion on the enforceability of a premarital agreement

Answer 98

It may be grounds to invalidate the agreement

Question 99

Premartial Agreement:

Can the parties agree to relieve each other from the child support obligations?

Answer 99

No

Question 100

Reimbursement Rights:

State the measure of a spouse’s reimbursement rights.

Answer 100

A claim for reimbursement is a claim in equity, not of right.

Question 101

Spousal Maintenance:

Is a spouse entitled to maintenance for any period after a divorce? Under what circumstances?

Answer 101

The court may order maintenance for either spouse if the spouse is seeking maintenance will lack sufficient property, including the spouse’s separate property on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and:

a. The spouse whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred:
1) Within 2 years before the date on which a suit for dissolution of the marriage is filed; or
2) While the suit is pending; or

b. The spouse seeking maintenance:
1) Is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
2) Has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
3) Is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide fro the spouse’s minimum reasonable needs.

Question 102

Spousal Maintenance:

Discuss the amount and duration of a spousal maintenance award.

Answer 102

The amount of spousal maintenance may not exceed the lesser of $5000 per month or 20% of the obligor spouse’s monthly gross income.

The duration of a maintenance order is limited depending on circumstances. Under the new law, a court may not order maintenance that remains in effect for more than:

a. 5 years after the date of the order if:
1) The spouses were married to each other for less than 10 years and eligibility is under the family violence requisite; or
2) The spouses were married to each other for at least 10 years but not more than 20 years

b. 7 years after the date of the order if the spouses were married to each other for at least 20 years but not more than 30 years; or
c. 10 years after the date of the order, if the spouses were married to each other for 30 years or more

Question 103

Standing:

Do grandparents have standing to being a paternity suit?

Answer 103

Yes.

There are different rules for standing depending on whether or not the child has reached adulthood. A suit to determine the paternity of a minor child may be brought by, among others, the mother, the child, or a representative authorized by law to act for an incapacitated individual who, absent her incapacity, would have standing to bring a paternity action. After the child turns 18, the relevant statute states that a paternity suit can be brought only by the child (and a guardian for an incapacitated adult child).

Question 104

Standing:

Do grandparents have standing to seek ACCESS to their grandchildren?

Answer 104

Yes

Under Texas law, grandparents have an independent cause of action to obtain and enforce their access rights under a SAPCR if:
(1) at least one biological or adoptive parent’s rights have not been terminated and the parent who is a child of the grandparent: (i) is dead; (ii) is incapacitated; (iii) has been jailed for at least 3 months; or (iv) does not have actual or court-ordered possession of or access to the child.

Grandparents must also prove by a preponderance of the evidence either that the parent is unfit or that denial of possession or access by the grandparent would significantly impair the child’s physical or emotional well-being.

Question 105

Standing:

Does a grandparent have standing to intervene in a SAPCR?

Answer 105

A grandparent can intervene into a modification suit if it is in the child’s best interest and the intervention is necessary to prevent substantial harm to the child’s physical and emotional well being.

Question 106

Bankruptcy:

Can the Court require a spouse to pay temporary support when the automatic stay is in place?

Answer 106

Yes