Family Law - Marriage Flashcards
COMMON LAW MARRIAGE
Test:
COMMON LAW MARRIAGE
Test:
- Agreement
- Cohabitation
- Holding out
- Separation for TWO YEARS»_space;> presume NO AGREEMENT to be married
JURISDICTION
Residency requirement
Suit by non-TX resident
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)
INCEPTION OF TITLE
GENERAL RULE:
Installment purchases:
Purchased on credit:
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
INCEPTION OF TITLE
Title:
- General rule
- TWO exceptions
Commingled funds:
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
INCEPTION OF TITLE
Trust income
Life insurance
Retirement
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
INCEPTION OF TITLE
Social security
Disability
Stocks
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
INCEPTION OF TITLE
Interest in closely held corp
Interest in partnership
Interest in closely held corp
- Acquired before marriage = SP
Interest in partnership
- Acquired before marriage = SP
SP INCOME RULES
GENERAL RULE:
Minerals:
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
SP INCOME RULES
Corporate distributions
Patents
Corporate distributions
- Cash dividends = Income (CP)
- Capital gains = Appreciation (SP)
Patents
- Royalties = Income (CP)
SP INCOME RULES
Tort recovery
Life insurance
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)
CLAIM FOR REIMBURSEMENT
NO reimbursement for:
- Child support
- Spousal maintenance
- Living expenses
- Nominal amounts (don’t sweat the small stuff)
- PAYMENTS ON A STUDENT LOAN
SURVIVORSHIP AGREEMENT
- NON-PROBATE transfer
Spouses can agree to survivorship rights in their CP
- Must be:
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.
SURVIVORSHIP AGREEMENT
Valid against:
- CR’s?
- BFP’s?
- Executor of deceased spouse’s estate?
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
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
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
PRE-NUPS
Challenging pre-nup:
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
MARITAL PROPERTY AGREEMENTS
Must be:
Conversion:
Partition/Exchange:
MARITAL PROPERTY AGREEMENTS
Must be:
- WRITTEN
- Signed by BOTH SPOUSES
Conversion
- Convert SP to CP
Partition/Exchange
- Change CP into SP
CREDITORS’ RIGHTS IN SP AND CP
Contracts for NECESSARIES
Other contracts
Tort liability
- DURING marriage:
- BEFORE marriage:
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
SPOUSAL MAINTENANCE
- MAX AMOUNT:
Duration:
Modifying maintenance:
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
SPOUSAL MAINTENANCE
What are the grounds for awarding spousal maintenance?
- 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
SPOUSAL MAINTENANCE
Factors for setting amount:
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
JUST AND RIGHT DIVISION
Appeal
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
FRAUD ON THE SPOUSE
Fraud on the spouse = ?
How to fix it:
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)
CLAIM FOR REIMBURSEMENT
Offsets
- 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
MARITAL PROPERTY AGREEMENTS
Challenging marital property agreement
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
