Texas Family Law Flashcards
Marriages that are void?
Age, If either party is under 16 without a court order
Bigamy, if either spouse is already married
Consanguinity, can’t be related
Same-sex marriage caveats
clergy and religious organizations do not have to participate
judges and county clerks could refuse to only if it could be assigned to another authorized individual available
Methods of Marriage
Ceremonial
Informal
Ceremonial Marriage Procedure
Get a marriage license
Find an authorized person to perform the ceremony
Validity of Ceremonial Marriage if Prongs are not met
Still valid if:
- reasonable appearance of authority
- at least one party acted in good faith
- neither spouse is a minor
Requirements for an Informal Marriage
- Neither Party is a Minor
- There is an agreement to be married
- WITHIN TEXAS, the couple represented to others that they were married
- WITHIN TEXAS, the couple lived together
Presumption of an Agreement to be Married
rebuttable presumption of no agreement if couple separated and ceased living together for 2yrs.
Declaration of Informal Marriage
Filing with the court that you meet the requirements of an informal marriage and allows you to back date the marriage to a date of your choice
7 Grounds for Annulment
- Minor without appropriate steps
- divorced less than 30 days before marriage and concealed this fact
- Impotency
- Incompetency
- Fraud, Duress, or Force
- Under the influence of alcohol or narcotics
- Marriage took place within the 72 hour waiting period
Exceptions to ground of annulment- minor
If brought by parent must be before minor turns 18
If brought by minor must be done within 90 days
Exceptions to ground of annulment- within waiting period
Not valid if... one party is on active duty the waiting period was waived spouses completed pre-marital education course Statute of Limitations 30 days
General Exception to Grounds for Annulment
Not available if cohabitated after defect was discovered
Must court’s grant annulments?
No, discretionary
Common reason not to grant an annulment
wife is pregnant
Jurisdictional Grounds for Divorce in Texas
one party must have been domiciled in Texas for 6 months
Venue for Divorce
any county where one party has resided for 90 days
Contents of Petition for Divorce
Whether a protective order for family violence is in place?
Are there minor children of the marriage?
If Yes, must include SAPCR
SAPCR
Suit Affecting the Parent Child Relationship
No-Fault Ground for Divorce
the marriage has become insupportable because of discord or conflict that destroys the legitimate ends of the marriage and there is no reasonable expectation of reconciliation.
Fault Grounds for Divorce
Cruel Treatment Adultery Felony Conviction Abandonment for more than 1 year Living Apart for 3 years Confinement in a mental hospital for 3 years
Court’s Options after Petition for Divorce is Filed
Grant Divorce
Order Counseling to determine if reconciliation is possible; and/or
Order parent education and family stabilization courses
Court Ordered Mediation is Binding if…
It states in bold, caps, and underlined that it is non-revocable
It is signed by both spouses
and it is signed by both attorneys who are present
Mediation Order can be deviated from if….
Family violence is involved
AND
Not in the child’s best interest
Collaborative Family Law Act
parties and their attorney’s agree in writing to use their best efforts and make a good faith attempt to resolve their disputes
Effect of Collaborative Family Law Agreement
Attorneys agree to withdraw if no agreement is reached
Once process starts court suspends all involvement
Once Agreement is reached court enters a judgment on its terms
Statute of Limitations for Collaborative Family Law Agreement
Must come to a settlement within 2 years
Must complete a status report after the first 180 days
Primary Consideration in Custody
What is the Child’s Best Interest
Public Policy Considerations in Custody
Ensure Frequent Contact with parents
Provide safe, stable, and non-violent environment
Encourage parents to share rights and duties of parenthood
Holley Factors
- desires of the children
- emotional and physical needs of the children
- emotional and physical danger of the children
- parental abilities of each individual seeking custody
- plans for the children
- stability of the home
- acts or omissions of the parents which may indicate that the existing relationship is not a proper one
- any excuse for those acts or omissions
Prohibited Custody Consideration Factors
sex- gendered relationships
marital status
race
religion-unless immoral, illegal, or harmful
Joint Managing Conservators
each party will have legal rights to make important decisions for the child. Does not require equal possession
JMC exclusive rights of one parent
Must be: primary residence
May Be: permission to marry and educational decisions
Presumption of JMC
There is rebuttable presumption that a JMC is in the best interests of the child
Factors in creating a JMC
parents’ ability to reach shared decisions
whether parents can accept and encourage positive relationship with other parent
whether both parents participated in child rearing
geographical proximity
JMC precluded if…
credible evidence of a history or pattern of neglect, or abuse
Managing Conservator
has custody of the child. right to make major decisions for the child, right to determine primary residence
Possessory Conservator
has visitation rights
Splitting up siblings
clear and compelling reasons must be presented
Parental Preference
There is a rebuttable presumption that it is in the best interests of the child to have a parent as a managing conservator
Rebuttal of Parental Preference
rebutted if parent voluntarily relinquished control, care, and possession for more than 1 yr a portion which must be in the last 90 days, AND appointment of a non-parent is in the child’s best interest;
OR parent is deemed un fit under one of the express exceptions
Standard Possession Order
Presumed to be in the child’s best interest if parents live within 100 mi of each other, and includes visitation on weekends of the first, third, and fifth week, 30 days in summer, alternating spring breaks, and 6-8pm on Thursday nights.
Denial of visitation
extremely harsh, will likely start with supervised visitations if there is a concern
Parenting Plan
- sets out rights of each party
- provides for periods of possession and access
- provides for child support
- optimizes the development f a close and continuing relationship between child and each parent
Parenting Coordinator
appointed by court
impartial third party who assists in resolving parenting issues
Parenting Facilitator
appointed by court
impartial third party who assists in resolving parenting issues and can monitor compliance with court orders
Modification of Conservatorship
- Modification is in the best interests of the child
- Circumstances have materially and substantially changed
- A Child 12 years or old has expressed in court which parent they want to live with
- The managing conservator has relinquished care and control for 6 months
What is material and substantial change
- conviction for family violence
- Multiple moves, or long distance moves
- Child wanting to not spend prescribed time with possessory parent
- conservator residing with sex offender
- Marriage
Requirements for Change of Conservatorship within 1 year
- child’s present environment endangers physical health or significantly impairs emotional development
OR - The parent with conservatorship is seeking the adjustment/ consents to
OR - Conservator has voluntarily relinquished care and control for 6 months
