TBE--Family Law Flashcards
02/13 #10: How does a court decide whether it has personal jurisdiction over a nonresident defendant?
1) court will look to see if long-arm statute statute authorizes personal jurisdiction under the facts; and whether exercise of personal jurisdiction is constitutional. 2) under Texas long arm statutes, Texas courts may assert personal jurisdiction over non-residents for purposes of determining parentage, child custody, and child support obligations when nonresident had sexual intercourse in Tx and child may have been conceived through that act. 3) court’s exercise of personal jurisdiction must be Constitutional (meaning D must have had sufficient minimum contacts with the forum such that forum’s exercise of personal jurisdiction would be fair and reasonable). 4) whether D has Sufficient Minimum Contacts with the forum means: whether contacts are purposeful, whether it was foreseeable that D could be subject to lawsuit in forum based on those contacts, and whether it is fair to have D sued in the forum (meaning D would not be so gravely inconvenient to the D that he would be severely disadvantaged if required to litigate there, while taking into consideration the forum’s interest in providing a forum for one of its citizen’s).
02/13 #10: Do grandparents have standing to bring paternity suit against D (if child is minor v. adult child)?
A suit to determine paternity of a minor may be brought by the mother, the child, a relative of the child’s mother if the mother is deceased, or a representative authorized by law to act. If child is adult, paternity suit can only be brought by child IF adult child has no presumed, adjudicated, or acknowledged father (however, this limitation does not preclude mentally disabled child to bring paternity suit through court-appointed guardian).
02/13 #10: How does a court adjudicate parentage through genetic testing? Can court order genetic testing? What are consequences of refusing? How to rebut genetic testing evidence?
Under the Family Code, upon institution of a paternity suit, an alleged father may be ordered to submit to genetic testing. Court may refuse to order genetic testing when child has presumed father if not in best interest of the child. Further, the Family Code provides that an alleged father refusing to submit to genetic testing can be held in contempt. An even more crucial consequence of refusing to submit to genetic testing is a default judgment rendering the alleged father to be deemed the father of the child. Under the Family Code, the only evidence that can rebut a genetic test (99% positive) is (1) another genetic test showing that the presumed father is not the biological father or that another man is the biological father or (2) a written denial of paternity from the presumed father and a written acknowledgment of paternity from someone else.
02/13 #10: If paternity is established, and what duties (ongoing and retroactive) does the adjudicated parent have to support an adult child with mental disability?
Parent will have to pay future and retroactive child support. Parent’s support duty continues for an indefinite period if that child became mentally/physically disabled before turning 18, the disability requires substantial care and personal supervision, and child will not be capable of self-support. Court may also require retroactive child support: retroactive support cannot be ordered unless suit is filed within 4 years of child’s 18th Bday. When determining whether to award retroactive child support, court will consider whether mother attempted to notify father, whether father knew of paternity, and whether retroactive child support will impose undue burden on father. When setting amount of ongoing and/or retroactive child support, court will consider child’s need for substantial care and personal supervision, any other existing/future needs directly related to disability, father’s financial resources. For retroactive child support, there is a statutory presumption that the best interests of the child are served if adjudicated father is ordered to pay a maximum of 4 years retroactive child support. This presumption can be rebutted if adjudicated father knew or should have known that he was the father, and sought to avoid his support obligations.
02/13 #9: Divorce: Wife bought house 5 yrs prior to marriage (15-yr mortgage). Couple made payments on mortgage from joint checking account following marriage. Couple built an addition to home. How does court decide the separate and community property interests in the home, mortgage payments, and addition?
Home is wife’s separate property. Under Texas law, all property owned or claimed by either spouse during or on dissolution of a marriage is presumed community property. However, this presumption can be overcome by clear and convincing evidence of the separate nature of the property. Wife purchased home 5 yrs prior to marriage and thus can provide such clear and convincing evidence. Existence of 15 yr mortgage doesn’t change the characterization of the property. Under the inception of title rule, any property acquired prior to marriage or any property acquired (either during or before marriage) by either spouse through gift, devise, or descent is the separate property of that spouse. However, if the separate property of a spouse is improved or eventually paid for through community property funds, then the community estate is entitled to a claim for reimbursement.
02/13 #9: Divorce: Husband bought–against wife’s wishes–lake house and took title solely in husband’s name (for $100k). Husband produced evidence showing he used $50k from cash inheritance and $50k from income earned being an investment banker. How does court decide the separate and community property interests in the lake house?
Under Texas law, property that is acquired solely in the name of one spouse is presumptively the spouse’s separate property if the other spouse was present during the transaction. Thus, the presumption of separate property only applies if both spouses agree that the property is truly the other spouse’s separate property. If they don’t agree, then Lake house is probably 50% husband’s separate and 50% community property. Because Lake house was acquired during marriage, it is presumed to be community property. Fact that title in husband’s name alone is not relevant. Rather, Source of funds will be controlling. Husband can rebut community property presumption by providing clear and convincing evidence that $50k of purchase price came from inheritance. Property acquired by gift, devise, or descent (e.g. inheritance) is spouses separate property. Other $50k is community property. Husband’s income, like wife’s is community property during marriage. Even if husband were able to show that the $50k income used came from account containing both separate and community money, the community-out presumption would apply, leading the presumption that husband withdrew and purchased lake house with community funds first before reaching any separate property in the commingled account.
02/13 #9: Divorce: 5 yrs before divorce, wife received $200k of stock as inheritance. Stocks paid $15k cash dividends in last 5 yrs. Wife kept cash dividends in separate savings account. How does court decide the separate and community property interests in the the stock? and what about the cash dividends?
Wife’s stock is separate property. Property acquired by spouse during marriage by gift, devise, or descent is the receiving spouse’s separate property. $200k of Stock acquired through devise (inheritance/will) is wife’s separate property. However, cash dividends from stock is community property. Income earned on separate property during marriage is community property. Cash dividends are a form of income that wife’s separate property stock produced during the marriage. Because all the cash dividends were earned during the marriage, all $15k dividends are community property. Fact that bank account where funds are held is titled in wife’s name alone is not relevant because the title of n asset does not determine its characterization.
07/12 #8: M and F met in 2000 and rented house together in 2002, never obtained marriage license and never married ceremonially. In 2008, F involved in accident requiring surgery, extended hostipalization, leaving F permanently disabled unable to work. M moved out in June 2009. In Jan 2010, F filed personal injury suit against tortfeasor; Aug 2010, settled for $800k. Settlement agreement said funds paid to “compensate F” for pain and suffering, mental anguish, medical expenses, and loss of earning capacity, but didn’t specify dollar amounts. At trial, following unrebutted evidence presented: 1) both intended to get married; 2) both introduced each other as husband/wife; 3) F took M’s last name. Court ruled M and F were a married couple and that settlement funds were entirely community property. 1) Did court err w/respect to finding them married? What are the requirements for a common law marriage (& barriers)?
In Texas, a ceremonial marriage or a marriage license will evidence marriage. However, a couple can also be validly married at common law. In order to satisfy the requirements of a common law marriage, first there must be no barriers to marriage. Potential barriers to marriage include: 1) minority (under 18), 2) consanguinity (marrying someone within a close degree of family relations), and 3) bigamy (marrying more than one person). Additionally, a couple must show that they 1. had an agreement to be married, 2. held themselves out to be married to the outside world, and 3. had cohabitation for any amount of time. Additionally, if a couple that would be common law married cease cohabiting for two years or more, there is a presumption that they were not common law married.
07/12 #8: M and F met in 2000 and rented house together in 2002, never obtained marriage license and never married ceremonially. In 2008, F involved in accident requiring surgery, extended hostipalization, leaving F permanently disabled unable to work. M moved out in June 2009. In Jan 2010, F filed personal injury suit against tortfeasor; Aug 2010, settled for $800k. Settlement agreement said funds paid to “compensate F” for pain and suffering, mental anguish, medical expenses, and loss of earning capacity, but didn’t specify dollar amounts. At trial, following unrebutted evidence presented: 1) both intended to get married; 2) both introduced each other as husband/wife; 3) F took M’s last name. Court ruled M and F were a married couple and that settlement funds were entirely community property. 1) Did court err when finding settlement funds entirely community property?
In Texas, there is a community property presumption for property acquired during marriage. This may be rebutted by clear and convincing evidence. When a married couple receives a settlement from a personal injury suit, the default is that the settlement is community property. However, if there are specific amounts awarded for different types of damages, then portions of the settlement might be separate property. For instance, if there is a specific amount allocated to pain and suffering or mental anguish, the person who suffered those injuries will be entitled to that amount as their separate property. Likewise, if there is a specific amount allocated to loss of consortium, the spouse of the injured person will receive that as separate property. Awards for lost earning capacity and medical expenses are community property. This assumes medical expenses were paid out of the community. Earnings are always community property, so loss of future earnings is community property too. However, when there is no way to tell what portion of the settlement went to which part of the damages, the presumption is that the whole amount is community property.
07/12 #7: M and F married in 2003; had one child. Separate in 2008; divorce petition 2010. Following evidence presented at trial: 1) F said that M was surgeon making $21k/month using 2003-2008 tax returns as proof of M’s income. 2) M said currently just ER Dr. making $9k/month. That separation caused depression; resulting that he cant handle stress of being surgeon. 3) proof F used separate property to buy ranch property that included M’s name on title. F testified that she had no intention to gift interest to M; also introduced deposition testimony from friend saying F told her entire ranch belonged to F and, in event of divorce, M had to interest in the property. Court ruled: M intentionally underemployed ordering $5k/month child support (court issued no specific findings of fact w/the support order). Court ruled that M and F each entitled to an undivided one-half interest in ranch as separate property. 1) Did court err in ruling M was intentionally underemployed?
(1) The court erred in ruling that Jack was intentionally underemployed. At issue is whether the court could consider Jack to be intentionally underemployed. In Texas, a child support order is based on the obligor’s net resources. Net resources, in a basic sense, include all cash flow obtained by the obligor along with a variety of limited deductions. In calculating an obligor’s net resources, the obligor has the initial burden to present evidence of his actual salary and income. Having done so, the other spouse then is entitled to present evidence showing that the obligor is intentionally underemployed and thus the obligor’s net resources do not accurately reflect his true earnings. If the spouse succeeds in presenting sufficient evidence to show intentional underemployment, the obligor must then respond with evidence showing reasons other than the intent to avoid child support. If the court is satisfied that the obligor is intentionally underemployed it can choose to use the obligor’s earning potential or capacity as the net resources for purposes of ordering child support. There is no need for the court to find that the obligor intended to avoid a child support obligation. All that is required is that the obligor is intentionally underemployed. In this case, Jack appropriately presented evidence of his actual salary at the time of the divorce. He has shown that he is currently working as a part-time doctor at an emergency clinic at a net income of 9,000 per month. Thus Barbara has the burden now to present sufficient evidence to show that the defendant was intentionally underemployed. The only evidence that Barbara has presented is that he previously earned a net income of $21,000 per month while working as a plastic surgeon. Even assuming this one piece of evidence is sufficient to support a finding of intentional underemployment, Jack is still permitted to rebut that evidence with evidence of his reasons for being underemployed. Jack has alleged that due to the divorce he has become depressed and feels unable to handle the stress of a plastic surgeon. Since there is simply no evidence beyond Barbara’s mere proof that his old job paid more, and Jack has presented a plausible reason for why he cannot take his old job anymore, it appears that Barbara is unable to carry her burden. There is no doubt that Jack could have earned more in his old job, but there is not sufficient evidence that he is intentionally underemployed. For this reason, the court erred in ruling that Jack was underemployed.
07/12 #7: M and F married in 2003; had one child. Separate in 2008; divorce petition 2010. Following evidence presented at trial: 1) F said that M was surgeon making $21k/month using 2003-2008 tax returns as proof of M’s income. 2) M said currently just ER Dr. making $9k/month. That separation caused depression; resulting that he cant handle stress of being surgeon. 3) proof F used separate property to buy ranch property that included M’s name on title. F testified that she had no intention to gift interest to M; also introduced deposition testimony from friend saying F told her entire ranch belonged to F and, in event of divorce, M had to interest in the property. Court ruled: M intentionally underemployed ordering $5k/month child support (court issued no specific findings of fact w/the support order). Court ruled that M and F each entitled to an undivided one-half interest in ranch as separate property. 1) Did court err in ordering M to pay $5k/month child support?
(2) Assuming that the court did not err in finding Jack intentionally underemployed, the court still erred in ordering Jack to pay $5,000 per month in child support. At issue is what are the statutory guidelines for child support obligations. In Texas, a court is entitled to order child support based on an obligor’s net resources. As mentioned above, this can include his potential net resources if the court finds that the obligor was potentially underemployed. In setting the amount of child support, the court is to follow the statutory guidelines set out in the Texas Family Code unless it makes specific findings of fact that a different amount is necessary. According to the guidelines, where there is one child of the marriage, the obligor should be ordered to pay 20% of his net resources as child support. This amount is presumed to be in the best interests of the child and to cover the child’s actual needs. Any deviation from this amount requires specific findings of facts. Specifically the court must find: (1) the guideline amount would be unfair or unjust; (2) the net resources of each parent; (3) the actual percentage used for setting the order; and (4) the reasons why the child support guidelines are being ignored. The court will consider things like the child’s special needs, the obligor’s ability to contribute, the financial resources available to contribute, and the amount of visitation and access to the child. Without the explicit findings, however, a deviation from the guidelines is an abuse of discretion. In this case, the court found that Jack’s net resources were $21,000 per month because he was intentionally underemployed. Applying the statutory guidelines for one child, the order of child support should have been $4,200 a month. Instead, the court ordered that Jack pay $5,000 per month in child support. This is a deviation from the statutory guidelines and the court did not make the required findings of fact. Thus this action was an abuse of discretion.
07/12 #7: M and F married in 2003; had one child. Separate in 2008; divorce petition 2010. Following evidence presented at trial: 1) F said that M was surgeon making $21k/month using 2003-2008 tax returns as proof of M’s income. 2) M said currently just ER Dr. making $9k/month. That separation caused depression; resulting that he cant handle stress of being surgeon. 3) proof F used separate property to buy ranch property that included M’s name on title. F testified that she had no intention to gift interest to M; also introduced deposition testimony from friend saying F told her entire ranch belonged to F and, in event of divorce, M had to interest in the property. Court ruled: M intentionally underemployed ordering $5k/month child support (court issued no specific findings of fact w/the support order). Court ruled that M and F each entitled to an undivided one-half interest in ranch as separate property. 1) Did court err in ruling that ranch house was separate property?
(3) The court did not err in ruling that the Kerr County ranch was Barbara’s separate property. At issue is what is the characterization of property purchased with separate property in the name of both spouses. Generally, any property on hand at the dissolution of a marriage is presumed to be community property. This principle is known as the community property presumption. This presumption can only be overcome with clear and convincing evidence that the property meets the constitutional definition of separate property. In addition, assuming something can be proven to be separate property, anything purchased with funds from selling the separate property will also be separate property assuming it can be adequately traced. If separate property is used to purchase land, generally that land will also be separate property under the tracing principle mentioned above. However, if the separate property is used to purchase land, and the title to the land is taken in both the purchaser’s name and the other spouse’s name, there will be a presumed gift. It will be a presumed gift of separate property and thus each spouse will own the house as tenants in common with each other. The house will not be community property, however, each will own 1/2 of the house as their own separate property. This presumption of a gift can be overcome, however. It can be overcome with evidence from the purchaser that the purchase was not intended as a gift. The purchaser must show some evidence of why the property was taken in both spouses’ names other than to give a gift. Assuming the spouse can prove this, the property will remain separate property even though held by both spouses. In this case, Barbara has presented evidence that the house was purchased with separate property. She has also presented evidence that she did not intend for it to be a gift. However, she has presented no evidence about why she purchased the title in both spouse’s names. Since she has not presented sufficient evidence to overcome the presumption of a gift, the ranch will be deemed 1/2 each spouse’s separate property. Her mere testimony of intent is simply unlikely to be enough to overcome the presumption thus the purchase will be presumed a gift.
02/12 #12: Divorce: How does the court find a prenuptial agreement enforceable? How can one attack the validity of a prenuptial agreement?
Under the Texas family code, a party attacking a premarital agreement has the burden to show 1) she did not sign the agreement voluntarily, or 2) it was unconscionable and she did not receive proper disclosure of the other spouse’s property and liabilities.
02/12 #12: Divorce: How/when does the trial court abuse its discretion in its division of property (here property not covered by prenuptial agreement)?
In a divorce Decree, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. In making a just and right division, the trial court may consider a plethora of factors, including, but not limited to: 1) the spouse’s capacities and abilities; 2) benefits that the party not at fault would have derived from continuation of the marriage; 3) business opportunities; 4) education; 5) relative physical conditions; 6) relative financial condition and obligations; 7) disparity of ages; 8) size of separate estates; 9) the nature of the property. The standard of review as regards the trial court’s division of property is abuse of discretion. In order to establish that the trial court abused its discretion, it must be shown that the trial court acted without reference to the guiding rules and principles or, in other words, acted in an arbitrary or unreasonable manner.
02/12 #12: Divorce: What is the community property presumption? When does it apply? How is it rebutted?
Community Property presumption is the presumption that all property possessed upon dissolution of marriage is presumed to be community property and that said presumption can only be rebutted by clear and convincing evidence that the property is separate property of the spouse so claiming.
02/12 # 11: Child support: how does the court find intentional underemployment and when does the court abuse its discretion in doing so? Whether the trial court abused its discretion in finding ex spouse intentionally underemployed and ordering ex spouse to pay child support based upon former earning. (importance of being laid off v. resigning for purposes of child support)
The standard of review is abuse of discretion; in order to establish that the trial court abused its discretion, it must be shown that the trial court acted without reference to guiding principles and rules or, in other words, acted in a arbitrary or unreasonable manner. Under the Texas family code, if the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the child support guidelines to the earning potential of the obligor. The Texas supreme court expanded this rule by holding so even when there is no proof that the obligor’s unemployment or under employment is for the purpose of avoiding child support. Also intent to avoid child support is not the controlling or even a necessary factor, a trial court may properly consider on obligor’s intent to avoid child support as a factor, along with other relevant facts, in an intentional unemployment or under employment analysis. The trial court must engage in a case by case determination to decide whether child support should be set based on earning potential as opposed to actual earnings. Once the obligor has offered to prove of his current wages, the obligee bears the burden of demonstrating that the obligor is intentionally unemployed or underemployed. If the obligee fulfills that burden, the burden then shifts to the obligor, if necessary, to offer evidence in rebuttal.
02/12 #11: Family violence finding: Appointing one parent SOLE managing conservator: Whether the trial court abused its discretion in making a family violence finding against spouse and appointing other spouse as SOLE managing conservator. Where is the presumption? Who has the burden? How to rebut?
It is a rebuttable presumption that the appointment of parents as JOINT managing conservators is in the best interest of the child; however, a finding of a history of family violence involving the parents of the child removes this presumption. The standard of review is an abuse of discretion; that is, that the trial court acted without reference to guiding rules and principles or, in other words, acted in a arbitrary or unreasonable manner. The Texas family code provides that in determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two year period preceding the filing of the suit or during the pendency of the suit. Further, the Texas family code provides that a court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault that results in the other parent becoming pregnant with the child. Likewise, the code provides that a court may consider any relevant factor in making its decision (rendering an order) whether to appoint the parents as joint managing conservators.
07/11 #8: M and F married in 1990–had boy in 1996. M and F separated in 2005. M filed divorce petition including motion to adjudicate parentage. M says no sex with F during probable time of conception and M and boy never bonded. F introduced evidence: M listed as father on birth cert, school rec’s, tax returns; also that M paid $12k child support since 2005 separation. M wants reimbursement for child support based on claim he’s not the father. During marriage, M used $24k of community funds to pay off note on separate property acquired before marriage. F asserted that M converted those community finds and sought reimbursement for her one-half share of those funds. Court found M not boy’s father based on i) no sex and ii) no bonding. Court denied F’s reimbursement claim explaining: “although $ used to pay off separate property were community funds, M doesn’t have to pay because court considers $12k past child support as offset against F’s reimbursement claim. As a result, F doesn’t have to reimburse $12k child support.”Whether the court erred in finding that male was not child’s father (tests for disproving father-child relationship)? Whether the court erred in finding that M was not boy’s father. Did court err in finding M was not boy’s father?
Under the Texas family code, a man is presumed to be the father of the child if he is married to the mother of the child and the child is born during the marriage. TEST #1 Under the Texas family code regarding actions commenced before September 1, 2011, for the purpose of disproving the father child relationship, it is provided that a proceeding brought by the presumed father, the mother, or another individual to adjudicate the parentage of the child having a presumed father must be commenced not later than the fourth anniversary of the date of birth of the child unless the trial court determines that: 1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; and 2) the presumed father never represented to others that the child was at his own. If tests (1) and (2) are met, then a proceeding seeking to disprove the father child relationship between the child and the child’s presumed father may be maintained at any time. TEST #2 As to actions commenced after September 1, 2011, a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of the child having a presumed father must be commenced not later than the fourth anniversary of the date of birth of the child to unless the trial court determines that: 1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or 2) the presumed father was precluded from commencing the proceeding to adjudicate the parentage of the child before the expiration of the time prescribed (four years) because of the mistaken belief that he was the child’s father, based on misrepresentations that led him to that conclusion.
07/11 #8: How does the court determine whether to deny a motion for an order for genetic testing under this section? What must the court consider? Whether to deny the motion for an order for genetic testing (factors).
In determining whether to deny the motion for an order for genetic testing under this section, the court must consider the best interest of the child, including the following factors: 1) the length of time between the date of the proceeding to adjudicate parentage and the date of the presumed father was placed on notice that he might not be the genetic father; 2) the length of time during which the presumed father has assumed the role of father of the child; 3) the facts surrounding the presumed father’s discovery of his possible non paternity; 4) the nature of the relationship between the child in the presumed father; 5) the age of the child; 6) any harm that may result to the child if presumed paternity is successfully disproved; 7) the nature of the relationship between the child and the alleged father; 8) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child support obligation in favor of the child; and 9) other factors that may affect the equities arising from the disruption of the father child relationship between the child and the presumed father, or the chance of other harm to the child.
07/11 #8: M and F married in 1990–had boy in 1996. M and F separated in 2005. M filed divorce petition including motion to adjudicate parentage. M says no sex with F during probable time of conception and M and boy never bonded. F introduced evidence: M listed as father on birth cert, school rec’s, tax returns; also that M paid $12k child support since 2005 separation. M wants reimbursement for child support based on claim he’s not the father. During marriage, M used $24k of community funds to pay off note on separate property acquired before marriage. F asserted that M converted those community finds and sought reimbursement for her one-half share of those funds. Court found M not boy’s father based on i) no sex and ii) no bonding. Court denied F’s reimbursement claim explaining: “although $ used to pay off separate property were community funds, M doesn’t have to pay because court considers $12k past child support as offset against F’s reimbursement claim. As a result, F doesn’t have to reimburse $12k child support.” Did court abuse discretion in offsetting F’s reimbursement claim with child support?
The Texas family code allows a court to resolve a claim for reimbursement by using equitable principles, including the principle that claims for reimbursement may be offset against each other if the court determines it to the appropriate. The Texas family code provides that a trial court may not recognize a marital estate claim for reimbursement for the payment of child support or the living expenses of the child of a spouse.
07/11 #7: When does the court abuse its discretion in ordering parent to pay retroactive child support?
Under the Texas family code, it is presumed that a court order limiting the amount of retroactive support to an amount that does not exceed the total amount of support that would have been due for of the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child. ?The presumption created under this section may be rebutted by evidence that the obligor 1) knew or should have known that he, the obligor, was the father of the child for whom support is sought; and 2) sought to avoid establishment of a support obligation to the child.?
07/11 #7: Whether the trial court abused its discretion by finding that spouse was intentionally underemployed (Shifting burdens).
Under the Texas family code, it is provided that if the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or under employment, the court may apply the child support guidelines to the earning potential of the obligor. A trial court may calculate child support based on earning potential, rather than actual earnings, when the obligor is intentionally unemployed or underemployed, even though there is no proof that the obligor’s unemployment were underemployed and is for purpose of avoiding child support. Although intent to avoid child support is not the controlling or even a necessary factor, the trial court may properly consider and obligor’s intent to avoid child support as a factor, along with other relevant facts, in an intentional unemployment or under employment analysis. A trial court must engage in a case by case determination to decide whether child support should be set based on earning potential as opposed to actual earnings. Once the obligor has offered proof of his current wages, the obligee bears the burden of demonstrating that the obligor is intentionally unemployed or under employed. If the obligee fulfills that burden, the burden then shifts to the obligor, if necessary, to offer evidence in rebuttal. The Texas supreme court has warned that trial courts should be cautious of setting child support based on earning potential in every case where an obligor makes less money than he has in the past.
02/11 #8: Whether the court erred in finding that a transaction is a loan (debt) rather than a gift.
There is a presumption of gift when a transfer is made from one to the natural object of one’s bounty. However, evidence may rebut the gift presumption in favor of a finding otherwise (such as a loan). A gift is a transfer of property may voluntarily and gratuitously, without consideration. Three elements are necessary to establish the existence of the gift: 1) intent to make a gift; 2) delivery of the property; and 3) acceptance of the property. The intent of the donor is the principal issue in determining whether a transfer constitutes a gift. Debts contracted during marriage are presumed to be community debt and therefore become community obligations at divorce unless there is evidence that the creditor agree to look solely to a parties separate estate. To overcome the presumption of community debt, the complaining party must rebut the community presumption by clear and convincing evidence. “clear and convincing” evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.
02/11 #8: Whether the court erred in finding that a spouse was voluntarily underemployed
By statute, if the actual income of the child support obligor is significantly less than what the obligor could earn because of intentional unemployment or under employment, the court may apply the support guidelines to the earning potential of the obligor. This applies only to situations where the obligor makes significantly less money because of intentional unemployment or under employment. The intentional under employment or unemployment need not be linked to an attempt by the obligor to avoid child support, although such a link can certainly be considered. However, the trial court must make a finding of intentional unemployment or under employment, and its discretion to base child support on earning potential rather than actual earnings must be supported by the record. A problematic emotional state (such as family difficulties arising from divorce) and a downturn in business does not seem to fulfill intentional under employment as required by statute. Worker spouse has the burden to establish actual income. In order to rebut, complainant spouse has the burden of proving under employment, which would permit a trial court judge to disregard actual employment salary numbers. The trial judge must make a decision based on evidence; not simply based on suspicion, belief, or supposition.
