from essays

Question 1

getting out of spousal agreements

Answer 1

statutory defense is only remedy (no common law)

• did not sign voluntarily OR
• agreement unconscionable when signed AND
• -not provided fair disclosure
• -didn’t waive disclosure
• -reasonably couldn’t have known

voluntary: intentional act
unconscionable: case by case

pre-nups have to be signed by both parties
can’t do child support or who gets kids

Question 2

common law marriage

Answer 2

agree to be married

living together as husband and wife

representing themselves to be married

in the state of texas

if actin to prove common law marriage is not brought w/in 2 years of when they stopped living together, presume they didn’t agree to be married

Question 3

retroactive child support

Answer 3

court will gen only order 4 years of past payment (considered fair and in best interest of kid)

but can be rebutted by showing obligor

• knew/should have of the kid
• sought to avoid est. support obligation

Question 4

non/under employment

Answer 4

when the actual income of the obligor is significantly less than what he could earn b/c of intentional under/non employment

court may apply child support guidelines to the earning potential instead of actual earnings

don’t need proof he’s doing it to avoid child support but can consider it

so the obligor will offer proof of current wages. Obligee must prove that he is under/non employed intentionally (req sufficient evidence)

then the obligor must show she’s wrong

Question 5

how much for child support?

Answer 5

1 kid: 20% up to 7500
2 kids: 25% up to 7500

stat and considered best interest of the child so to overcome there must be specific circumstances like:

• age/needs
• ability of parent to support
• finical issues (under/non employment)

Question 6

kid getting benefit of disability pay

Answer 6

the court will apply the standard support guidelines but subtract the amount the kids get from their disability benefits

Question 7

must include findings with child support

Answer 7

must state the net resources of both parents, the application of the guidelines and how much should be paid or that the application wouldn’t be just, the reason and what the court actually went with

Question 8

when to stop paying child support

Answer 8

kid is 18 or graduates/stops going to HS, whichever is later

court retains jurisdiction to confirm amount of support arrearages/render judgment for past due child support if motion for enforcement requesting money judgment is filed not later than 10 years after:

• kid becomes adult
• child support obligation terminates

Question 9

how to change child support order

Answer 9

can’t change it just b/c he’s making more money

to get modification must show circumstances of child/affected party have materially and substantially changed

Question 10

what money is subject to child support

Answer 10

everything that is the obligors, including any new CP he has with his new wife (so everything except her SP or sole management)

new spouse can file suit to determine the extent, if any, of her interest in the real/personal property that is subject to the lien for child support

the court can release the lien if it would be fair to the new spouse

Question 11

who is the dad

Answer 11

presumed if married to mother during marriage

lives w/kid first 2 years of life and holds out to others he is the dad

voluntarily signs birth certificate

acknowledges

through paternity/probate

Question 12

if he doesn’t want to be the dad

Answer 12

must bring action to disprove father relationship no later than kids 4th bday unless

• -presumed father didn’t live with family/have sex with woman at time relevant
• -he didn’t bring it b/c of the mistaken believe it was his kid b/c of misreps made to him

if the dad can go ahead with his ‘im not the dad suit’ then the court can order DNA testing

Question 13

why wouldn’t the court order DNA testing

Answer 13

conduct of mother/presumed father estops party from denying parentage

it would be inequitable to disprove the father/child relationship between kid and dad

• -length of time from notice, proceeding
• -length of time he’s been the dad
• -facts surrounding how he found out
• -relationship and kids age

Question 14

if ppl want to modify a managing conservatorship

Answer 14

modification must be in the best interest of the kid

AND

material and substantial change of circumstances since rendition of the last order

(abuse can be prima facie material and substantial change in circumstances if there is a conviction or oder of deferred adjudication)

Question 15

involuntarily removing a kid

Answer 15

involuntary termination of parent/child relationship based on conduct of parent that is harmful to kid

only if it it on one of the 21 grounds provided for in the code and it is established termination is in kids best interest

• -both by cc evidence
• -ex: parent used controlled substance in way that endanger the kid

appellate court must determine if the fact-finder could reasonably found cc evidence

Question 16

when deciding who manages kid

Answer 16

presumed to be in the best interest of the kid by appointing a parent sole or joint managing conservator

look at things like:

• -kids best interest (physical health/safety)
• -natural parent relinquishes care of kid with non parent for more than a year
• -one of the 21 grounds

in determining if appointment of both parents is in kids best interest consider

• -physical, psychological or emotional needs
• -ability of parent to give kid first priority, welfare and reach shared decisions
• -if each parent can encourage/accept positive relationship between kid and other parent
• -geo proximity
• -if the kid is 12 or older who he prefers

Question 17

visitation

Answer 17

court must order standard possession order: if they live w/in 100 miles of each other the non-cusotidal parent gets kid from 6-8 every Thursday during the year on the 1st, 3rd and 5th weekend of the month and one month during the summer

Question 18

Suit Affecting the Parent Child Relationship (SAPCR)

Answer 18

either party request jury trial/entitled to verdict by jury on managing conservator issue

court can’t contravene jury’s verdict on the MC issue by entering a judgment NOV

entitled to a jury verdict on: appointment of a sole managing conservator or joint managing conservator, determination of which joint managing conservator can determine primary residence, impose restrictions to geo areas

can;t pick the kids keeper b/c of gender

Question 19

abuse and neglect

Answer 19

court must consider the intentional use of abusive force by party against a child or child’s parent in appointing MC

neglect: exists where the parent knowingly placed or knowingly allowed kid to stay in conditions or surrounding which endanger the kids physical/emotional well being
abuse: parent’s conduct and connotes a serious culpable act of commission when the parent has engaged in conduct or knowingly placed kid w/ppl who engage in conduct which endangers the kid physically/emotionally

Question 20

spouses abusing each other

Answer 20

inter-spousal immunity doctrine has been abrogated as to all torts

Question 21

duty to report

Answer 21

professionals have non delegable duty to report suspected child abuse

report in 48 hours

person who in good faith reports is immune from civil liability

Question 22

protective order

Answer 22

for family violence

granted only after notice and hearing

court will enter protective order after notice and hearing if court determines that family violence will occur again

Question 23

Temp Protective Order (TPO)

Answer 23

no notice and hearing req unless applicant seeks to evict from house

lasts 20 days, increase by 20 days

not granted unless the court finds clear/present danger he will commit family violence again

family violence: includes threats that reasonably places a family member in fear of imminent physical harm/bodily injury

Question 24

TRO

Answer 24

temporary restraining order

Question 25

Spousal Maintenance

Answer 25

presume maintenance is not req unless

–spouse seeking it exercised diligence in seeking suitable employment or

–developing nec skills to become self supporting during a period of separation and during the time the suit for dissolution of marriage is pending

Question 26

how much monthly spousal support

Answer 26

can’t exceed 2500 or 20% average salary

Question 27

how long can an order of spousal maintenance last?

Answer 27

can’t order more than 3 years at a time
but limit to the shortest time that allows the spouse seeking it to meet her min reasonable needs by getting appropriate employment

consider substantially diminished earning capacity, physical/mental issues, duty for kids

Question 28

spousal maintenance for marriage 10+ years

Answer 28

married 10 years or longer

spouse seeking maintenance lacks sufficient property, including what was distributed to spouse on divorce

to provide for reasonable needs and

spouse seeking maintenance is unable to support herself through employment b/c of incapacity physical or mental disability, custodian of small kid that needs substantial care and lacks earning capacity in the labor market

where court entered award of spousal maintenance w/o specifying grounds, it is presumed that the court reached the correct decision

Question 29

grandparents to get access

Answer 29

only parties besides parents who can get reasonable possession or access

only can do so by alleging denial or possession/access to kid would significantly impair the kids health or well bing

preponderance of the evidence

dr. testimony saying the kid is sad b/c he didn’t see grandparents is not enough

special weight must be given to the fit parent’s decision to keep grandparents out

Question 30

adoptive and natural grandparents may request access to kid, provided that:

Answer 30

at least one bio or adoptive parent of the kid has not had parental rights terminated

grandparent is parent of the parent of the kid and the parent is incarcerated, incompetent or doesn’t have possession of kid or dead

doesn’t allow step grandparents have it

grandparents can issue suit affecting the parent child relationship
–seeking appointment as managing conservator

to prevail, grandparent must show that kids present environment raises serious questions concerning physical health

Question 31

ons spouse defrauding the other

Answer 31

a spouse can make a moderate gift of the CP w/o the other’s consent

but excessive gifts can be set aside as constructive fraud

factors:

relationship of the donee and the donor spouse
amount of the gift in relation to the size of the CP
how much is left after the gift

then add it back into the estate and divide it as though it was there (so the bad husband shouldn’t get as much)

Question 32

child may be adopted if:

Answer 32

both parents have died

parent/child relationship as to each parent has been terminated

stepparent wants to adopt the child and real parents rights terminated

kid must stay with adoptive parents 6 months if the parent gives up rights, 1 year if the bio parents don’t consent

both parents must want adoption

child age 12 or more must consent

Question 33

residency and venu for divorce

Answer 33

where either lived for more than 90 days

must be domiciliary of Texas for at least 6 months and must reside in the county in which the divorce petition is filed at least 90 days