Family Law Flashcards
Preamble
TX family code governs these issues. TX favors marriage over co-habitation of unmarried couples and recognizes both ceremonial and common law marriages.
Standing & Venue Req for Divorces
- county residence of either S
- domiciled in TX last 6 mos
- that county past 90 days
- or spouse can qualify only
How Does a CL Marriage Arise
- agreed to be married;
- lives together as H & W (co-habitation)
- held themselves out like married
Req for Valid Ceremonial Marriage
- reasonable appearance of authority;
2. at least one party acting in good faith
Declaration of Informal Marriage
- bother persons 18 or older;
- neither already married;
- not related in prohibited degree of consanguinity
What Makes a Marriage Void
- consanguinity
- bigamy
- second M?
What Makes a Marriage Voidable
- underage
- alcohol or narcotics
- impotency
- duress
- fraud
- force
- mental incapacity
- concealed divorce w/in 30 days of M
- M less than 72 hrs
Grounds for Fault Based Divorce
- adultery
- cruel treatment
- abandonment over 1 yr
- living apart for 3 + yrs
- confinement to mental hospital for 3 + yrs
- conviction of felony w/ 1 + yrs jail time
Ground for No Fault Divorce
- insupportability
2. no reasonable expectation of reconciliation (only defense)
When can Ct Order Joint Managing Conservatorship
- in child’s best interest
- child’s physical/emotional/psycho needs
- Parents show ability to reach shared decisions
- Parents both took part in child rearing
Factors Court Considers in Appointing Managing Conservator (statutory)
- best interest of child
- no gender discrim
- no marital status discrim
- past domestic violence
- false report of child abuse
Amount of Child Support (%)
- one kids = 25% NR
- two kids = 30% NR
- six kids = 40% NR max
- capped at $8,550/mo
Remedies to Enforce Child Custody Earlier
- mandatory withholding
- money judgment + 6% interest
- contempt
- license suspens
- child support lien for arrears
- levy & execution of financial assets
Temporary Injunction Use During Divorce
- bar unreasonable & reasonable acts
- one spouse exclusive residence
- payment of temp child support
- attys fees
- sworn inventory
- production of books of fam biz
Modification of Custody Order
- after 1 yr of prior
- filed in SAPCR ct
- in BIOC
- circs material & substantially changed
- C at least 2 yrs old who wants to live w/ other parent
- custodial parent voluntarily relinquished primary care/poss for min of 6 mos
What Does a Habeas Corpus Action Entail when Used to Enforce a Custody Order
- habeas corpus
- tort liability
- contempt
When can Spousal Maintenance be Ordered
- married min 10 yrs
- one S lacks stuff property to provide min needs
- unable to support herself b/c of it
- disability
- custodian of disabled child
- lack of employment skills
Max Spousal Maintenance Allowed
- max 2,500/mo or 20% S average mo income
2. max 36 mos unless S disabled
Factors Ct Considers in Appointing Managing Conservator
- child desires;
- child phsycical & emotional needs
- parental ability;
- stability of home enviro;
- parents plans and opportunities
- acts & omissions
Modification of Child Support Order
- min 3 yrs
- SAPCR ct
- BIOC
- circs materially & substantially changed
Grandparent Access/Possession
- show one parent is dead
- they are parent of dead aren’t
- other parent has endangered child
- abandoned them
- is incapacitated
- behaving in manner not in BIOC
- show denying access would result in substantial harm to C
Factors NOT Applied in Statutory Guidelines
- C age
- C needs
- parents ability to support
- financial resources
Grounds Sufficient for Involuntary Termination of PC Relationship
- abandonment
- abuse
- neglect
- imprisonment for 2 + yrs
- culpable acts to child or another child
- failure to support for 1 + yrs
- controlled substance
- BIOC test
When Child Can be Adopted
- both parents dead
2. parent/child/ relationship of both terminated
Mandatory Reports Completed Before an Adoption FInalization
- pre adoption screening;
- post placement adoption report;
- report showing adopting parents criminal history;
- SHEG;
- history of abuse
Presumption of Paternity
- C born during M
- C ben w/in 300 days M ends
- married C’s mom after birth & voluntarily asserted parental vital stats
- on birth certificate
- promise in record
first 2 yrs resided w/ C & represented to others his C
Infant Adoption Procedure
- file pet to terminate the PC relationship;
- aff of status of C signed by mother after 1st trimester;
- aff of relinquish of parental rights signed by mother;
- aff of waiver signed by father
Community Property Preamble
TX is a CP state. CP is properties acquired other than SP. There is a presumption that prop acquired during M is CP.
What is Community Property
- TX is CP state;
- properties other than SP;
- presumption during M is CP
Homestead Establishment
- intent to have prop be homestead;
2. overt acts of usage
How is Property Divided at Divorce
- just & right division;
- age of spouses;
- physical condition;
- ability & earning capacity;
- needs for future support;
- size of estate;
- benefit non-faulting spouse would have if M cont;
- fault
Community Presumption
- all assets during M presumed to be CP;
- all assets on credit during M on comm cred;
- all assets on hand CP
Types of Property that are SP
- owned before M;
- acquired during M by gift;
- petitioned CP;
- acquired w/ separate funds;
- tort recovery for PI
Pre-Marital Agreement Requirements
- in writing;
- signed by both spouses;
- no consideration needed;
- agree SP remains SP;
- disposition of prop on separation, divorce, death
Setting Aside Pre-Marital Agreement
- prove not signed voluntarily
- unconscionable when made
- no fair disclosure of other S’s property or obligations
