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BAR EXAM > Family Law - Marriage > Flashcards

Family Law - Marriage Flashcards

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1
Q

COMMON LAW MARRIAGE

Test:

A

COMMON LAW MARRIAGE

Test:

  • Agreement
  • Cohabitation
  • Holding out
  • Separation for TWO YEARS&raquo_space;> presume NO AGREEMENT to be married
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2
Q

JURISDICTION

Residency requirement

Suit by non-TX resident

A

JURISDICTION

Residency requirement

  • Domiciled in TX for 6 MONTHS
    • Either party
    • Don’t need PJ over BOTH spouses
  • Domiciled in COUNTY for 90 DAYS

Suit by non-TX resident
- Just need to meet the TX residency requirement (6 MONTHS)

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3
Q

INCEPTION OF TITLE

GENERAL RULE:

Installment purchases:

Purchased on credit:

A

GENERAL RULE:
Purchased during marriage = CP

Installment purchases
- BEGINs during marriage = CP

Purchased on credit

  • Acquired during marriage = CP
    • UNLESS CR agrees to look only to SP
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4
Q

INCEPTION OF TITLE

Title:

  • General rule
  • TWO exceptions

Commingled funds:

A

Title

  • Person’s name on the title is NOT relevant—apply inception of title rule
  • EXCEPTION: SP funds used but title is taken in other spouse’s name indicates a GIFT to that spouse. But this is a presumption that can be overcome (C&C evidence).
  • EXCEPTION: CP funds used but taken under W’s name “as her sole and separate property”
    • But this recital works ONLY IF the other spouse PARTICIPATED IN THE TRANSACTION
    • If W buys property and takes title in her name “as her sole SP” it’s meaningless if H wasn’t involved.

Commingled funds
- Apply tracing—lowest intermediate balance rule

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5
Q

INCEPTION OF TITLE

Trust income

Life insurance

Retirement

A

Trust income

  • If trust was created before marriage, it’s SP
  • UNTIL the spouse B gets unrestricted access to the corpus—once that happens, it’s just the B’s money, and that becomes CP

Life insurance
- Policy taken out before marriage = SP

Retirement

  • Benefits for years worked BEFORE marriage = SP
  • Benefits for years worked DURING marriage = CP
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6
Q

INCEPTION OF TITLE

Social security

Disability

Stocks

A

Social security
- NOT SUBJECT TO DIVISION - FED PREEMPTION

Disability
- If injury occurred DURING marriage = CP

Stocks

  • Purchased during marriage = CP
  • Even if the stocks were purchased as part of retirement plan
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7
Q

INCEPTION OF TITLE

Interest in closely held corp

Interest in partnership

A

Interest in closely held corp
- Acquired before marriage = SP

Interest in partnership
- Acquired before marriage = SP

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8
Q

SP INCOME RULES

GENERAL RULE:

Minerals:

A

SP INCOME RULES

GENERAL RULE:

  • INCOME from SP is COMMUNITY PROPERTY
    • UNLESS the property was a GIFT—income from gifts remain SP
  • APPRECIATION in value of SP is SP

Minerals

  • Only the DELAY RENTALS are income (CP)
  • So, bonus, royalty, are SEPARATE property
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9
Q

SP INCOME RULES

Corporate distributions

Patents

A

Corporate distributions

  • Cash dividends = Income (CP)
  • Capital gains = Appreciation (SP)

Patents
- Royalties = Income (CP)

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10
Q

SP INCOME RULES

Tort recovery

Life insurance

A

Tort recovery

  • Pain, disfigurement = SP
  • Med exp, lost income = CP
  • If award doesn’t specify how much is for what kind of recovery, it’s ALL CP

Life insurance
- Proceeds = NOT income (remains SP)

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11
Q

CLAIM FOR REIMBURSEMENT

NO reimbursement for:

A
  • Child support
  • Spousal maintenance
  • Living expenses
  • Nominal amounts (don’t sweat the small stuff)
  • PAYMENTS ON A STUDENT LOAN
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12
Q

SURVIVORSHIP AGREEMENT

  • NON-PROBATE transfer

Spouses can agree to survivorship rights in their CP
- Must be:

A

SURVIVORSHIP AGREEMENT

  • NON-PROBATE transfer

Spouses can agree to survivorship rights in their CP

  • Must be:
    • In WRITING
    • Signed by BOTH SPOUSES
    • Included specific survivorship language - “with right of survivorship” etc.
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13
Q

SURVIVORSHIP AGREEMENT

Valid against:

  • CR’s?
  • BFP’s?
  • Executor of deceased spouse’s estate?
A

NOT EFFECTIVE against CREDITORS
- CR has 2 years after death to assert rights

NOT EFFECTIVE against BFP’s
- UNLESS purchased within 6 MONTHS—from someone OTHER THAN the deceased spouse’s executor of estate

NOT EFFECTIVE against executors who don’t know about the agreement

  • If deceased spouse’s PR sells the property WITHOUT KNOWING that it should have gone to the other spouse by ROS, the PR is not liable.
  • A BFP who bought from the PR is also not liable
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14
Q

PRE-NUPS

  • Need CONSIDERATION?

Which of these can a pre-nup accomplish?

  • Change SP to CP
  • Modify, eliminate spousal support
  • Change CHILD SUPPORT
  • Modify, eliminate reimbursement rights
  • Say which SP will remain SP
A

PRE-NUPS

No consideration NEC

CAN do:

  • Say which SP will remain SP
  • Modify, eliminate spousal support
  • Modify, eliminate reimbursement rights
  • Lots of other stuff

CANNOT do:

  • Change SP to CP (this has to be done during marriage, CONVERSION agreement)
  • Change CHILD SUPPORT
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15
Q

PRE-NUPS

Challenging pre-nup:

A

Challenging pre-nup
- Unconscionable AND:
- Lack of disclosure (unless written waiver)
- Didn’t know about the things not disclosed
OR
- Not voluntary
- Think fraud, not duress

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16
Q

MARITAL PROPERTY AGREEMENTS

Must be:

Conversion:

Partition/Exchange:

A

MARITAL PROPERTY AGREEMENTS

Must be:

  • WRITTEN
  • Signed by BOTH SPOUSES

Conversion
- Convert SP to CP

Partition/Exchange
- Change CP into SP

17
Q

CREDITORS’ RIGHTS IN SP AND CP

Contracts for NECESSARIES

Other contracts

Tort liability

  • DURING marriage:
  • BEFORE marriage:
A

Contracts for NECESSARIES
- Joint liability for both spouses—CR’s can reach ALL property

Other contracts

  • CR’s can reach whatever property the debtor-spouse MANAGED (SP, SMCP, JMCP, but NOT the OTHER SPOUSE’s SMCP)
  • Joint liability for both spouses—CR’s can reach ALL property—IF the other spouse acted as an AGENT for the debtor-spouse

Tort liability

  • DURING marriage:
    • ALL tortfeasor’s SP
    • ALL CP
  • BEFORE marriage:
    • ALL tortfeasor’s SP
    • CP tortfeasor could MANAGE
18
Q

SPOUSAL MAINTENANCE

  • MAX AMOUNT:

Duration:

Modifying maintenance:

A

SPOUSAL MAINTENANCE

  • MAX AMOUNT:
  • $5,000 OR
  • 20% of obligor’s income

Duration

  • GENERAL RULE: shortest reasonable period
  • 5 years, 10-20 yrs of marriage
  • 7 years, 20-30 yrs of marriage
  • 10 years, 30+ yrs of marriage

Modifying maintenance
- MATERIAL AND SUBSTANTIAL CHANGE in circumstances

19
Q

SPOUSAL MAINTENANCE

What are the grounds for awarding spousal maintenance?

A
  • Must exercise DILIGENCE in meeting reasonable needs

Must meet the GENERAL requirement AND one of the SPECIFIC requirements:

GENERAL requirement:
- Spouse does not have sufficient property to provide for his/her MINIMUM REASONABLE NEEDS

SPECIFIC requirement (meet any one):

(1) FAMILY VIOLENCE by the other spouse in the past 2 YEARS OR WHILE SUIT IS PENDING
(2) Physical or mental DISABILITY will prevent spouse from earning suff income
(3) Married for 10 YEARS and lacks ability to earn suff income
(4) Spouse has to support a DISABLED CHILD, and this prevents her from earning suff income

20
Q

SPOUSAL MAINTENANCE

Factors for setting amount:

A

Factors for setting amount:

  • Ability to provide for reasonable needs
  • Education, experience
  • Duration of the marriage
  • Age, earning capacity, physical and emotional condition
  • Fault of the obligor
21
Q

JUST AND RIGHT DIVISION

Appeal

A

JUST AND RIGHT DIVISION

Appeal

  • Must show ABUSE OF DISCRETION, that the division was MANIFESTLY UNJUST
  • Can only REMAND—must remand the ENTIRE estate, not just the disputed part
22
Q

FRAUD ON THE SPOUSE

Fraud on the spouse = ?

How to fix it:

A

GENERAL RULE:
- A spouse has a right to give REASONABLE gifts out of the CP without the other spouse’s consent

Fraud on the spouse = an UNREASONABLE gift of CP to someone outside the marriage.

How to fix it:

  • Hypothetically re-constitute the marital estate—how much would the estate be worth if the gift hadn’t been made?
  • Now give the other spouse what she would have gotten under that hypothetical estate
  • Give the fraudulent spouse what’s left (their share will be reduced by the amount of the fraudulent gift)
23
Q

CLAIM FOR REIMBURSEMENT

Offsets

A
  • The spouse claiming reimbursement may have to OFFSET her recovery based on her USE AND ENJOYMENT of the benefits conferred on the other marital estate
  • EXCEPT NO OFFSET for use and enjoyment of primary or secondary residence
24
Q

MARITAL PROPERTY AGREEMENTS

Challenging marital property agreement

A

Challenging marital property agreement
- Unconscionable AND:
- Lack of disclosure (unless written waiver)
- Didn’t know about the things not disclosed
OR
- Not voluntary
- Think fraud, not duress

BAR EXAM (25 decks)

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