Family Law Flashcards
What marriages are void?
Hint: ABC
A - age under 18 (unless emancipated by court order)
B - bigamy unless impediment removed (aka first spouse died)
C - consanguinity
How do you get married?
Either formally or informally.
Formally includes a marriage license and finding an authorized person to perform a ceremony OR there is a reasonable appearance of authority to wed, at least one party acted in good faith, and no minors.
An informal marriage is when neither is a minor and there is an agreement to marry. They represent themselves to others as married and live together.
Why would a couple opt for a declaration of informal marriage rather than just getting married when they go to the courthouse?
They can pick an effective date of marriage (like for tax reasons).
How do you get out of a marriage that does not involve death?
- annulment
2. divorce
In determining the validity of a common law marriage, which of the following constitutes evidence of an agreement to be married?
A - The parties occasionally refer to each other in public as “husband” and “wife.”
B - The parties have been an exclusive couple for 10 years.
C - The parties live together and cosigned the mortgage on their home as “husband” and “wife.”
D - The parties celebrated a “honeymoon” at the Alamo.
C. Proof of cohabitation and holding out may constitute evidence of an agreement to be married, and proof of that agreement may be by direct or circumstantial evidence. A single public act such as signing a mortgage as husband and wife can support a finding of common law marriage. Occasional references to one another as spouses, long-term dating, and celebration of a honeymoon are not sufficient to support an agreement to be married.
How do you establish a common law (informal) marriage?
To establish a common law marriage, it must be shown by a preponderance of the evidence that the parties: (i) agreed to be married; (ii) lived together in Texas as spouses (cohabitation); and (iii) in Texas, represented to others that they were married (holding out). A Declaration of Informal Marriage may be used to prove common law marriage but is not required.
Under which of the following circumstances is a divorce filing valid in Texas?
A - Husband moved to Zapata County, Texas, five months ago from California and petitions Wife, who still resides in California, in Zapata County.
B - Husband and Wife lived as a married couple for 10 years in Jackson County, Texas. Husband absconded to Idaho with all of the couple’s property. Wife still lives in Jackson County but files for divorce in Jasper County.
C - Husband and Wife lived together in King County, Texas, for 150 days. Husband files for divorce in King County.
D - Husband and Wife lived together in Montague County, Texas, for five months when Husband enlisted in the United States Navy and went to sea. Wife files for divorce in Montague County three months after Husband’s enlistment.
D. A petition for divorce cannot be filed unless: (i) one party must have been a domiciliary of Texas for the preceding six-month period, and (ii) one party must have resided in the county in which suit is filed for the preceding 90-day period.
Service in the armed forces or other government service of the United States or Texas is considered residence in the state and country. If the durational residency test is met, personal jurisdiction over the nonresident is not required.
A temporary restraining order (TRO) may be issued ex parte to prevent a variety of harassing actions. These harassing acts are of the sort that no reasonable person would think he or she would be allowed to commit.
What are common examples?
Common examples include bothersome and vulgar telephone calls, threats of bodily harm, falsifying records, and removing or tampering with property. A TRO cannot prohibit a party from engaging in her usual occupation, even if that is the family business.
Describe protective orders.
The maximum duration of a protective order generally is two years (with a few exceptions). It can be petitioned for in a divorce proceeding, but it can also be a separate cause of action if no divorce is pending. An order can be based on actions that have resulted in physical harm, or based on threats that reasonably place a family member in fear of imminent physical harm, sexual assault, or bodily injury. Family violence also includes dating violence. Protective orders are available to victims who have had a “continuing relationship of a romantic or intimate nature” with an abusive individual even though the parties are not legally related.
A temporary protection order (TPO) ordering the eviction of a spouse from a family home can be issued when?
Only if the applicant appears personally and files a sworn affidavit including: (i) a detailed description of the facts supporting the TPO; (ii) the victim either resides on the premises or has resided there within 30 days prior to filing the application; (iii) the person to be evicted has within the 30 days prior committed family violence; and (iv) there is a clear and present danger that the person to be evicted is likely to commit family violence again against a member of the household.
Wife seeks an ex parte temporary protective order (“TPO”) evicting Husband from the family home. Under which of the following circumstances should the TPO and eviction be granted?
A - Wife personally appears in court and submits her sworn affidavit stating that both Husband and Wife reside at the property, that Husband punched her 15 days prior, and Husband has threatened to do it again.
B - Wife personally appears in court and submits her sworn affidavit stating that Wife and Husband reside at the property, that Husband punched her five weeks prior, and there is a clear and present danger of further domestic violence.
B.
TPO can only be granted if the applicant appears personally and files a sworn affidavit including: (i) a detailed description of the facts supporting the TPO; (ii) the victim either resides on the premises or has resided there within 30 days prior to filing the application; (iii) the person to be evicted has within the 30 days prior committed family violence; and (iv) there is a clear and present danger that the person to be evicted is likely to commit family violence again against a member of the household.
In determining whether the appointment of a joint managing conservatorship (“JMC”) is in a child’s best interest, the court will consider
The court will not consider whether both parties have sufficient financial means to support the child. Appointment of JMCs does not impair or limit the court’s authority to order child support, including payments by one JMC to the other.
The court will appoint JMCs if the appointment is in the best interest of the child by considering: (i) child’s physical and emotional needs; (ii) parties’ ability to reach shared decisions; (iii) positive relationships between parties, including whether both parents participated in child rearing previously; (iv) geographic proximity of the parties; and (v) preference of child if 12 years or older.
A grandparent seeking managing conservatorship must:
A grandparent seeking appointment as MC must demonstrate one of the following: (i) the child’s present circumstances would significantly impair his/her physical health or emotional development; (ii) both parents, the surviving parent, or the MC consents; or (iii) both parents are deceased.
What is the standard possession order?
The standard possession order is a default order that must be incorporated into a divorce decree unless the parties mutually agree to different provisions, or the court determines that the standard order is not in the best interest of the child.
For a child age 3 years or older, if the parents live within 100 miles of each other, the standard possession order gives possession to the noncustodial parent: (i) from 6 p.m. Friday to 6 p.m. Sunday the first, third, and fifth weekends each month; (ii) from 6 p.m. to 8 p.m. every Thursday during the school year; and (iii) 30 days in the summer. Visitation schedules are not conditioned on payment of child support.
What must a grandparent seeking an order access to a child, over a parent’s objection, state?
An order granting access to a child by a grandparent that is rendered over a parent’s objection must state that: (i) at least one parent’s parental rights had not been terminated; (ii) denial of access would significantly impair the child’s physical health or emotional well-being; and (iii) the grandparent is the parent of the child’s parent who has been incarcerated during the three-month period prior to filing, or has been found to be incompetent, or does not have actual or court-ordered possession of or access to the child, or is dead. Special weight is given to a fit parent’s decision regarding visitation rights of a grandparent. A parent who contests such visitation is presumptively acting in the child’s best interest.
How is the proper level of child support determined?
Court should consider the statutory guidelines, the needs of the child, the ability of the parents to contribute to the child’s support, financial resources available for support of the child, and the amount of possession and access to the child.
Absent a contrary agreement, a parent’s support obligation terminates upon the child’s marriage, enlistment in the armed forces, death, or removal of the child’s disability.
T/F: The guidelines provide for the following percentages of an obligor’s net resources: 20% for one child; 25% for two children; 30% for three children; 35% for four children; 40% for five children; and not less than 40% for over five children.
True.
The statutory child support guidelines apply to the first _____________________ per month of the obligor’s net resources.
$9,200
The statutory guidelines apply to the obligor’s first $9,200/month of net resources. If the obligor’s net resources exceed that amount, the court may order additional support only if the child has proven needs that exceed guideline support.
What happens when a parent paying child support dies?
Child support obligation does not terminate on the parent’s death. The remaining unpaid balance of the child support obligation is accelerated. The amount due is discounted to present value and becomes a claim against the obligor’s estate.
When does child support payments end?
Absent a contrary agreement, a parent’s support obligation terminates on the child’s marriage, the child’s enlistment in the armed services, the child’s death, or removal of the child’s disability. Also, if an order terminates the parent-child relationship between the obligor and the child, based on the results of genetic testing that exclude the obligor as the child’s genetic father, the duty of support terminates.
What are material and substantial changes that a court considers and may modify a support order for?
The court may modify a support order if the circumstances of the child or an affected party have materially and substantially changed since the order was issued. Examples of material and substantial changes in circumstances include birth or adoption of additional children, illness or injury to the obligor affecting his earning capacity, illness or injury to the child that results in a special need, and release of the obligor from prison.
A child support lien attaches to which of the obligor’s property?
A statutory lien arises by operation of law for all amounts of overdue support. The lien attaches to all of the obligor’s real property, other than homestead property, and to all personal property that is not exempt from creditors’ claims, including claims for negligence or personal injury. The lien also automatically attaches to property acquired in the future.
How can the parent-child relationship be terminated?
- parent knowingly engaged in criminal conduct that resulted in the parent’s imprisonment and inability to care for the child for more than 2 years.
- parent has failed to support the child for a 1-year period ending within 6 months of the date the petition was filed.
T/F: Failure to enroll a child in school is considered parental misconduct, another ground for involuntary termination. Abuse occurs not only when a parent engages in harmful conduct but also when the parent knowingly places the child with persons who engage in conduct that endangers the child’s physical or emotional well-being.
True.
