Family Law Flashcards
Can a marriage license expire?
Yes if a marriage ceremony does not occur before the 90th day after the license is issued.
Marriage is a _________?
Status. You are either married or you are single.
Does Texas recognize marriages in other states?
Yes. Generally, Texas recognizes any marriages contracted elsewhere if the marriage was VALID where contracted.
Exception - Texas does not recognize any same-sex marriage or marriage like relationships based upon a same-sex relationship. Violates public policy.
Does Texas allow non-marital cohabitation agreements?
Yes. They must specify all aspect of the agreement IN WRITING BEFORE the relationship begins. This is NOT LIMITED to same-sex relationships.
What are the different ways to get married? What are the requirements for each?
FORMALLY:
1) Obtain a license from a county clerk on an application;
2) Fill out the application under OATH;
3) Provide proof of identity (you are who you claim you are;
4) Must be 18, provide parental consent if between 16 and 18 (consent must be given within 30 days before the application is filled out), or provide court order if under 16;
5) You are not related to each other within two degrees of consanguinity OR affinity; AND
6) You are NOT CURRENTLY MARRIED already to someone else or IF YOU WERE MARRIED, it ended by death or divorce.
How long must you wait after divorce to get married?
There is a 30-day waiting period before you can get married again UNLESS it’s the same parties in the divorce that are remarrying.
This creates a VOIDABLE marriage giving rise to the ability to seek an annulment. The petitioner cannot have known about the previous marriage AND a reasonable person should not have known. Further, as with all annulments, the petitioner must immediately cease cohabiting with the other party.
Is there a waiting period after getting a marriage license? If so, can it be waived?
Yes. There is a 72-hour waiting period. If a marriage occurs within this period, there is a 30-day statute of limitations in which the court can grant an annulment.
Can be waived if a party is in the military or on active duty; the parties participated in marriage counseling; OR the parties can present other good evidence to the court.
What is a declaration of registration?
A couple can register their INFORMAL MARRIAGE if they meet the following:
1) BOTH over the age of 18;
2) Informally married;
3) Fill out the required form AND SELECT THE DATE ON WHICH THE RELATIONSHIP BEGAN (can backdate marriage to determine what property is community property and what is separate property; AND
4) Must sign and register the declaration with the COUNTY CLERK under oath.
What are the requirements for common law marriage?
1) Agreement - the parties must establish that they intend to be married (does not have to be expressed);
2) Cohabitation - the parties must live together FOR ANY PERIOD OF TIME; AND
3) Hold out - the parties must hold themselves out to the public as being married to each other.
As far as marital status goes, is there any difference between formally married couples and informally married couples?
No.
The only difference is that if informally married couples live apart and separate for more than 2 years, there is a PRESUMPTION that there was never a marriage in the first place. This presumption can be overcome by CLEAR AND CONVINCING evidence.
Can courts require a medical exam or premarital education to get married?
No
What is the effective date of a formal marriage?
The date of the ceremony (NOT the issuing date of the license).
What is required to have a valid marriage ceremony?
The party performing the ceremony must have ACTUAL AUTHORITY to do so.
However, if they do not have actual authority but rather the APPEARANCE of authority, and ONE party to the marriage believed that person had authority, the marriage will still be valid.
What are the consanguinity and affinity limitations?
CANNOT marry any ancestor or descendant by blood or adoption of the whole or half blood. This includes: brother, sister, niece, nephew, aunt, uncle, mother, father, and any CURRENT OR FORMER step-parents or step-children (you can marry any other step-relation).
How does Texas treat children of void marriages due to marrying within two degrees of consanguinity or affinity?
There are NO ILLEGITIMATE CHILDREN IN TEXAS. A child is the legitimate heir of both its mother and father once they are identified.
What are annullable marriages?
These are marriages that can be set aside based on:
1) Lack of CAPACITY of one of the parties due to consumption of alcohol or narcotics;
2) Impotency UNKNOWN before marriage; OR
3) Fraud (that goes to the essentials of marriage), duress, or force used in the inducement; AND
4) A party MUST CEASE COHABITATION and seek the annulment as soon as the basis for an annulment is discovered.
NOTE: Marriages between 16 and 18 without parental consent are annullable marriages. These actions can be brought by a parent within 90 days of the marriage AND BEFORE the child turns 18.
What are void marriages? Who may bring a claim to void a marriage? Do both parties have to be present?
These are those marriages which are:
1) Contracted by people who are UNDER THE AGE OF 16 without a court order;
2) Contracted by people related within a prohibited degree of consanguinity or affinity; OR
3) In Texas, contracted by people of the same sex.
These actions to set aside the marriage can be brought by EITHER PARTY in an EX PARTE hearing (only one party required).
What are the duties of spouses?
Duty to support each other and their children born or adopted into that community.
Liable for ALL NECESSITIES IN LIFE (food, medical care, clothing, shelter, etc.
Duty not to negligently or intentionally harm each other.
Does Texas have inter-spousal immunity?
No. Spouses may sue each other for intentional and negligent torts.
Property acquired during the marriage is ________?
Presumed to be community property.
T/F - Spouses can recover for IIED.
Yes, a spouse can recover for ONLY EXTREME AND OUTRAGEOUS conduct inflicted intentionally or recklessly causing severe emotional distress.
Does Texas recognize actions against third parties for interfering with a relationship between spouses?
No. Criminal conversion (someone boinked your wife) and alienation of affection (stole your spouse from you) are not recognized causes of action in Texas.
What can a spouse seek if their spouse is seriously injured or killed?
May bring a claim for LOSS OF CONSORTIUM when a third party’s tortious conduct causes death or injury to a spouse and the other spouse lost the companionship and affection of the spouse harmed due to that event (usually a wrongful death action.
Loss of consortium is NOT alienation of affection.
Are there limits to bringing an IIED claim against a spouse?
Yes. If brought, a plaintiff spouse CANNOT recover tort damages AND an unequal distribution of community property (this would be a double recovery). You must choose one or the other.
Define “severe emotional distress.” Who determines what is severe enough?
Highly unpleasant mental reaction such as grief, shame, humiliation, embarrassment, anger, disappointment, or worry that is usually accompanied by a physical manifestation (headaches/sleeplessness) to an extent such that a REASONABLE PERSON COULD NOT BE EXPECTED TO ENDURE the conduct.
Reasonable person standard is a question for the jury since Texas allows jury trials in divorce cases.
Name the ways a marriage may be dissolved.
Death, divorce, annulment, or a suit to have the marriage declared void.
What type of divorce state is Texas?
No-fault.
Texas divorce cases are three cases in one. What are they?
1) Dissolution of the marital relationship;
2) SAPCR; AND
3) Division of the community property estate.
What is “in rem” jurisdiction for the dissolution of a marriage?
Court has “in rem” jurisdiction (jurisdiction over the subject matter of the case / don’t confuse with subject matter jurisdiction) of a divorce case filed by one party who is a domiciliary (6 months in the state) and resident (90 days in the county filed) of Texas.
T/F - Both parties must be present in court for judgment to be made on the divorce.
False. Just one party.
What type of other jurisdiction is there besides in rem jurisdiction? When is it needed?
Personal Jurisdiction. This is NECESSARY to have over BOTH PARTIES when the court is determining child support, division of property, or paternity.
To obtain personal jurisdiction in a suit solely to determine the marital status of the parties, the other party (even if non-resident) must only be given notice and served a citation.
What is the no-fault ground for divorce?
Insupportability - this means that because of discord or conflict of personalities, the legitimate ends of the marital relationship have been destroyed, and there is no reasonable expectation of reconciliation.
What are the fault grounds for divorce? Why are they important? What is the burden of proof?
Fault grounds are important because they may be a basis for an unequal distribution of community property. These include:
1) Cruelty - can be physical OR mental (gross indifference);
2) Adultery;
3) Conviction of a felony DURING THE MARRIAGE ONLY if the convicted spouse is imprisoned for ONE YEAR OR MORE and has NOT BEEN PARDONED;
4) Abandonment - Must show intent to abandon and the abandoning spouse must remain away AT LEAST ONE YEAR;
5) Living Apart - AT LEAST THREE YEARS; AND
6) Confinement in a Mental Hospital - AT LEAST THREE YEARS AND it appears likely that the disorder is such that ADJUSTMENT IS UNLIKELY or that IF ADJUSTMENT OCCURS, RELAPSE IS PROBABLE.
A party must prove fault by a PREPONDERANCE OF THE EVIDENCE.
What three things must a court have to have jurisdiction?
1) Subject Matter Jurisdiction - jurisdiction over the case itself;
2) Personal Jurisdiction - jurisdiction over the parties in the case; AND
3) In Rem Jurisdiction - jurisdiction over the subject matter of the case.
What is the method used to obtain personal jurisdiction over an out-of-state party? How can a court obtain such jurisdiction over an out-of-state party?
LONG ARM JURISDICTION - For a nonresident, absent respondent, long arm jurisdiction is used to establish personal jurisdiction over that spouse.
The in-state spouse MUST be domiciled in the state of Texas for 6 months PRIOR TO FILING for divorce AND a resident of the county in which the case was filed for at least 90 DAYS PRIOR TO FILING.
Long Arm Jurisdiction is obtained through any basis that is consistent with the Constitution (such as serving process while the party is travelling through the state).
Can also be obtained IF Texas was the LAST MARITAL RESEDENCE of the two parties AND the suit is COMMENCED WITTHIN 2 YEARS AFTER they were living in that marital residence.
When a court obtains personal jurisdiction over both parties, it also has jurisdiction over the ___________.
SAPCR (Suit Affecting the Parent Child Relationship).
T/F - Without personal jurisdiction over both parties to a marriage, the court cannot make permanent decisions regarding any children or property.
True
Can a party waive citation and notice, thus subjecting themselves to personal jurisdiction?
Yes if signed under oath by a notary public and filed with the court and admits the following:
1) Acknowledges receipt of papers in the lawsuit;
2) Enters appearance;
3) Does not desire to appear any further; AND
4) The court may proceed without any notice of hearings.
What are the three types of procedural methods for a divorce?
1) Bench trial;
2) Jury trial; OR
3) Alternative Dispute Resolution
How must pleadings be alleged?
Grounds for divorce MUST be alleged in the LANGUAGE USED IN THE TEXAS FAMILY CODE. Specificity is not required.
Surplus language may be stricken by the court (either on other party’s motion, or court’s own motion).
When can a SAPCR be filed? What if a woman is pregnant? What if a previous SAPCR already exists?
On its own at any time, but MUST BE FILED contemporaneously with the DIVORCE PROCEEDINGS.
If a woman is expecting a child, the divorce case MUST BE DELAYED until the child is born.
If SAPCR that already exists MUST be brought under the jurisdiction of the divorce court through a MOTION TO TRANSFER.
Explain Default Divorces.
A court may grant a default judgment if a party fails to appear after proper service and notice. Lack of response, however, MAY NOT BE TAKEN AS AN ADMISSION. The petitioner still has to prove the grounds for divorce and other issues by a PREPONDERANCE OF THE EVIDENCE.
T/F - Once a divorce petition is on file, the court may grant the divorce and issue its final decree.
False. A divorce petition must be on file for 60 DAYS before it may be granted. Meaning the first day the court may grant a divorce is the 61ST DAY after the petition has been on file.
Explain Temporary Restraining Orders Also, how long are they valid?
May be filed EX PARTE WITHOUT NOTICE to the other party.
May be granted by a court to place prohibitions on the other party to maintain the status quo. Cannot prohibit spouse from the occupancy of the house where the spouse is living. Violation can result in CONTEMPT.
These are valid until a hearing may be held on whether to grant a TEMPORARY INJUNCTION for the duration of the proceedings.
Explain Protective Orders.
An order prohibiting one spouse from approaching or contacting the other spouse or children because of PAST, PROVEN FAMILY VIOLENCE.
May be sought outside of divorce court or within the divorce proceedings.
Temporary Protective Orders - May be issued for up to 20 days temporarily on a showing that FAMILY VIOLENCE HAS OCCURRED OR MAY OCCUR AGAIN.
Protective Orders - After the hearing OR at the temporary protective order hearing, a protective order may be issued for a PERIOD NOT TO EXCEED TWO YEARS OR ONE YEAR AFTER RELEASE FROM PRISON OR JAIL.
What are three methods for divorce under Alternative Dispute Resolution (ADR)?
1) Arbitration - Neutral third party appointed by the court makes determination for the parties. Can be made binding or non-binding on the parties. Never binding on the court. Court always has authority in an arbitrated suit to make the ultimate decision on the best interest of the child.
2) Mediation - Neutral third party works with the parties as an intermediary to help them resolve their own differences.
3) Collaborative Law Agreement - Written agreement to use best efforts to make a good faith attempt to resolve differences and reach a resolution without judicial intervention. Courts will approve an agreement and give it judicial effect. The agreement must settle all property division, conservatorship issues, and child support issues. IF THE AGREEMENT FAILS TO SUCCEED, BOTH ATTORNEYS MUST WITHDRAW AND THE PARTIES MUST EMPLOY NEW ATTORNEYS TO PROCEED TO TRIAL.
What is the chief vehicle from a cause of action regarding access to a child, possession/conservatorship, or child support for a child? What is the key issue?
The Suit Affecting the Parent Child Relationship (SAPCR).
The key question for the court is to determine what is in the BEST INTERESTS OF THE CHILD.
