Things I need to review/miss frequently Flashcards
Divorce Residential Qualifications
Either party must have been a domiciliary of Texas for the preceding six months and a resident of the county in which suit is filed for the preceding 90-day period. If this residency test is met with respect to one party, the court can grant a divorce even though it does not have personal jurisdiction over the other party.
Protective Orders
After notice and a hearing, and upon a showing that family violence has occurred and is likely to reoccur, the court may issue a protective order prohibiting the respondent from: committing family violence, directly or indirectly communicating with a member of the family, going near the residence or place of employment of the other party; removing a child from the possession of the other party stalking the other party.
If the court finds a clear and present danger that a spouse will commit family violence again, a court may issue an ex party temporary protective order.
Sole Managing Conservator
The best interests of the child is the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.
Absent special circumstances, the court must appoint a parent as sole managing conservator unless (i) appointment of a parent would impair the child’s health or emotional development; (ii) one or both parents voluntarily relinquished possession and control of the child for one year or more, a portion of which period was within the 90 days preceding the commencement of the action to be appointed MC.
If the parties agree on who is to be the MC, court must appoint that person unless it finds that it would not be in the best interests of the child
A child age 12 or older may choose the person who is to have the exclusive right to designate the child’s primary residence, subject to judicial veto.
Unless there is a history of family violence, there is a rebuttable presumption that appointing the parents as JMCs is in the child’s best interest.
Grandparents and SAPCR
A grandparent or other relative has standing to seek appointment as an MC if (i) both parents are deceased (ii) both parents, the surviving parent, or the MC consents, or (iii) the grandparent provides satisfactory proof that the child’s present circumstances would significantly impair the child’s health or emotional development.
Modification of Order Establishing Conservatorship or Possession and Access
If the child has moved to a new county and has resided there for at least six months, upon motion by either party, transfers of the SAPCR to the new county is mandatory.
Grounds for modification: court can modify an order that provides for the appointment of a conservatorship if the modification would be in the best interests of the child and (1) the circumstances have materially and substantially changed since the date the order was entered; (2) the child is at least 12 years old and has expressed in chambers to the court the name of the person whom the child prefers to have the exclusive right to determine the child’s residence; or (3) the conservator who has the right to establish the child’s primary residence has voluntarily relinquished the primary care and possession of the child for at least six months.
The conviction or an order of deferred adjudication of a conservator for the offense of abuse of a child, or for an offense involving family violence, is a material and substantial change of circumstances that justifies the modification of an order.
Enforcement of Custody Order
(1) Habeas Corpus, (2) Tort liability for interference with Child Custody, (3) criminal liability, (4) contempt.
Grandparents and siblings may petition for reasonable possession or access
Under Texas, law, grandparents may have an independent cause of action to obtain and enforce their access rights under a SAPCR if at least one biological or adoptive parent’s rights have not been terminated and the parent who is a child of the grandparent (i) is dead, (ii) incapacitated, (iii) has been jailed for three months, or does not have actual court-ordered possession of or access to the child. The grandparent must also prove by a preponderance of the evidence either that the parent is unfit or that denial of possession or access by the grandparent would significantly impair the child’s physical condition or emotional well being.
Enforcing Support Order
(1) Mandatory withholding from earnings for child support; (2) contempt; (3) suspension or nonrenewable of licenses and disqualification from state loans contracts; (4) money judgment for arrearages; (5) child support lien; can freeze assets if deliver notice of levy.
Termination of Parent Child Relationship
Authorized if one of the grounds below is established, and termination is in the child’s best interest. Both of these elements must be proved by clear and convincing evidence.
(1) neglect
(2) abuse
(3) previous termination
(4) parental misconduct
(5) use of controlled substance in manner that endangers child
(6) failure to support for one year
(7) abandonment
(8) imprisonment for more than two years
Adoption
A child may be adopted if the parent-child relationship as to each parent has been terminated or a suit for termination is joined with a suit for adoption
Step parent: A child may be adopted if the parent whose rights have not been terminated is the spouse of the petitioner
former step parent: A child may be adopted by a former stepparent if (1) the child is at least two years old, (2) the parent-child relationship has been terminated with respect to one parent, and (3) the former stepparent has been the child’s managing conservator or has had actual care, possession, and control of the child for at least six months (if the non terminated parent consents to the adoption) or at least one year (if the non terminated parent does not consent to the adoption.
Ex Parte TRO for unreasonable acts
The court may issue a temporary restraining order ex party to prevent a variety of harassing actions. These harassing acts are of the sort that no reasonable person would think he would be allowed to commit
Temporary Injunction After Notice and Hearing
After notice and a hearing, the court may issue a temporary injection (i) requiring a sworn inventory and appraisal showing the property and debts of the parties; (ii) requiring the support of either spouse; (iii) requiring the production of books and records; (iv) ordering the payment of attorney’s fees and future expenses; (v) appointing a receiver; (vi) and awarding one spouse exclusive occupancy of the residence and exclusive control of the parties usual business or occupation during the pendency of the case.w
Community Property
Community property is all property that is not shown to be the separate property of one of the spouses. In Texas, the income from either spouse’s separate property belongs to the community. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. The burden of proof is on the party contending that an asset is separate property; separate ownership must be established by clear and convincing evidence.
Unconscionable premarital agreements
A premarital agreement, just as a marital agreement, is unenforceable against a party if it was not executed voluntarily of if it was unconscionable when made and (i) no fair disclosure was given of the property or obligations of the other party, (2) the right to disclosure was not waived in writing, and (3) the party had no adequate knowledge of the property or financial obligations of the other party.
Conversion Agreements and Partition/Exchange Agreements
Conversion agreement: convert separate property into community property by written agreement. Must be made during the marriage with respect to existing property. Agreement must be in writing, signed by both spouses, and must specify the property being converted.
Partition Exchange Agreement: Convert community property into separate property. Partition must be based on a voluntary agreement by both spouses. Income from property will be treated as community unless the partition agreement specifies otherwise.
Community Property: Tort Recovery for personal injuries.
pain and suffering: separate loss of consortium: separate disfigurement: separate lost wages: community property medical expenses: community property
Spousal Maintenance
The court may order maintenance for either spouse if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and
spouse convicted or deferred adjudication for criminal offense that constitutes an act of family violence, committed during the marriage within two years before date on which suit is filed or while suit is pending
(1) or spouse seeking maintenance is unable to earn sufficient income to provide for minimum reasonable needs because of an incapacitating physical or mental disability;
(2) has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for MRN
(3) is custodian of a child of the marriage who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for MRN.
The amount of spousal maintenance may not exceed the lesser of $5,000/month or 20% of the obligor spouse’s monthly gross income.
duration: 5 years if married less than 10 and eligibility is for family violence, and at least 10 years but not more than 20 years on other grounds
7 years for marriages between 20-30 years.
10 years if married for more than 30 years.
Just and Right Division
Trial court must divide the community as it deems “just and right” Unequal division of community property can be made.
The presumption is that the trial court properly exercised its discretion. However, the record must reveal circumstances that justify an unequal division that was ordered. In finding that the trial court’s division was manifestly unjust, the court of appeals cannot reverse and order a different division, it must reverse and remand.
Before appointing a guardian
Before appointing a guardian the court must find by clear and convincing evidence that alternatives to a guardianship and available supports and services were considered and determined not to be feasible.
Guardianship Venue
Of Minor: may be brought in the county in which both parents reside, or if not in the same county, in the county of residence of the parent who is the child’s sole managing conservator or joint managing conservator with the greater period of physical possession.
Incapacitated Adult: in a proceeding for the appointment of a guardian for an incapacitated adult, venue lies in either the county of residence or the proposes ward or the county in which the principal estate of the ward is located.
Guardian for Minor
One parent is entitled to be appointed guardian of the estate. If only one parent, the survivor is the natural guardian of the person of the minor children and is entitled to be appointed guardian of their estates.
If minor child is orphaned: Parent can make a written declaration appointing a guardian. Has to be in a will or meet the will requirements. Court will generally honor such requests. If last surviving parent did not produce such a document, child’s grandparent appointed in best interests of the child. If no living grandparents, nearest of kin is appointed. If no next of kin, court appoints a guardian. If 12 or older may generally choose the guardian.
Guardian for persons other than a minor
The court appoints a guardian for an incapacitated adult according to the circumstances and considering the incapacitated person’s best interests. The probate court has broad discretion in the selection of a guardian. The ward’s spouse is entitled to be appointed in preference to any other person. If the ward is not married or if his spouse is disqualified, the nearest of kin to the ward is entitled to the guardianship. If has no relatives, the court will appoint a guardian. Court must make reasonable efforts to consider the incapacitated person’s preference.
Persons disqualified to serve as guardians
- Lacks capacity
- Lacks experience to properly and prudently manage the estate or otherwise is an unsuitable choice
- Has a conflict of interest.
- Is a nonresident who has not named a resident agent
- has been expressly disqualified.
Proceeding for determination of incapacity
A court investigator investigates to determine whether a less restrictive alternative to full guardianship is appropriate. A physician’s report must describe the nature, degree, and severity of the incapacity. The proposed ward must be present, the court must find by clear and convincing evidence that the ward is incapacitated.
Before appointing a guardian the court must find by clear and convincing evidence that (i) the proposed ward is incapacitated; (ii) it is in the proposed ward’s best interests to have a guardian appointed; (iii) the rights of the proposes ward or his property will be protected by the appointment; and (iv) alternatives to the guardianship, as well as available support needs, were considered and determined not to be feasible.
Application for guardianship must present a written report from a physician based on an examination of the incapacitated person within the preceding 120 days which must (i) describe in detail the nature, degree, and estimated severity of the incapacity; (ii) state in what manner the proposed ward’s physical or mental health affects his ability to make reasonable decisions; (iii) state whether any current medication affects the demeanor of the proposed ward, and (iv) describe the precise physical and mental conditions underlying a diagnosis of senility.
Bond of property must be given and approved within 20 days after the letters of guardianship are granted
inventory must be filed within 30 days after the guardian qualifies
Removing a guardian
Court may remove a guardian without notice or hearing if (i) she fails to take the oath of guardianship or post fiduciary bond within 20 days, or return an inventory within 30 days; (ii) she moves from Texas, is absent from the state for three months without the court’s permission, or cannot be served with notices or other processes; or (iii) there is clear and convincing evidence that she has neglected or cruelly treats the ward, has neglected to educate or maintain the ward, or has removed assets from the estate or is about to do so.
may remove after notice and hearing if there are sufficient grounds to believe that he has misapplied, embezzled, or removed assets from he state, or is about to do so; (ii) has been guilty of gross misconduct or mismanagement; (iii) fails to return any required accounting or report, or fails to obey an order of the court . . .
Can file an application for a hearing to determine whether he should be reinstated as guardian, but only if he was removed without notice and a hearing and on the grounds that he either (i) mistreated the ward, or (ii) was guilty of misapplying or embezzling estate funds or removing assets from the estate. The court will reinstate the guardian only if it concludes that the applicant did not engage in the conduct that led to his removal.
Elements of Negotiability
(1) Unconditional (2) promise or order to pay (3) a fixed amount of money (4) is payable to order or bearer (5) on demand or at a definite time (6) contains no unauthorized promise or undertaking
HDC Analysis
(1) is the person a holder? (2) Does the person hold in due course?
Due course requires the holder to take for value, in good faith, and without notice that the instrument is overdue, has been dishonored, contains an unauthorized signature or alteration, or is subject to any claim or defense.
Good faith means honesty in fact and observance of reasonable commercial standards.
Real Defenses: Forgery Fraud in factum Alteration Adjudicated Incompetent Infancy Illegality Duress Discharge SOL Suretyship
Commercial Paper SOL
Three years applies to actions (i) on unaccepted drafts (after date of dishonor) (ii) against issuers/acceptor’s of cashier’s checks, certified checks, etc. (iii) for conversion (iv) for breach of warranty and (v) to enforce other Article 3 rights.
Six years applies to actions (i) on notes payable at a definite time or on demand and (ii) on certificates of deposit. SIX YEARS FROM THE DUE DATE.
Liability of Parties
Before a holder can look to an endorser for payment, the holder must fulfill three prerequisites: (1) presentment, (2) dishonor, and (3) notice of dishonor.
An endorser’s liability on a check is discharged unless the check is presented for payment or given to a depository bank for collection within 30 days after the endorsement. Notice of dishonor must be given to an indorser within 30 days after dishonor.
Transfer Warranties
Warranties are made by any person who transfers an instrument or customer or collecting bank that transfers an item for consideration.
Transferor warrants that:
(1) She is entitled to enforce the instrument
(2) All signatures are genuine or authorized
(3) The instrument or item has not been materially altered
(4) No defense or claim of any party is good against her
(5) She has no knowledge of any insolvency proceedings
Duties of Drawee Bank to Customer
When a bank is the drawee, the bank may be liable to its customers for failure to honor the draft.
The bank must honor a check as drawn. Therefore, it cannot charge the account (i) if there is no order by the depositor (where the drawer’s signature is forged; (ii) for more money than the original order (where a third party altered the amount (iii) if the bank pays the wrong person (the forger if the payee’s or indorsee’s signature or (iv) if the item is postdated and the customer notifies the bank of the postdating.
Effect of Unauthorized Signatures
Generally, an unauthorized signature is ineffective as the signature of the person whose name is signed but it is effective as the signature of the signer. The unauthorized signer therefore assumes all obligations to any party who gave value for the instrument. The Code specifies five circumstances in which a forgery or unauthorized signature will be validated because the person whose name is used has done something to preclude her from raising the issue
(1) imposter or fictitious payee
(2) Fraudulent Endorsements by employees
(3) failure to exercise ordinary care
(4) bank statement rule: A customer may not assert an alteration or forgery if his signature if he does not notify the bank within 1 year after the bank made the instrument available to him. A customer may not assert a forged indorsement more than 3 years after the cause of action accrues.
(5) estoppel by certification
Recovery for instruments mistakenly paid
Payment of an negotiable instrument is final, except that : (i) the payor can pursue those who breach presentment warranties; and (ii) the rule of finality operates only in favor of persons who took for value and in good faith and those who in good faith change their position in reliance on the payment or acceptance.
Presentment warranties
A drawee can recover for breach of a presentment warranty, even from HDCs and persons who detrimentally relied on payment. On unaccepted drafts, persons obtaining payment warrant that
(1) the warrantor is entitled to enforce the draft (in essence a warranty of good title) ( a forged endorser’s signature destroys “good title,” but a forged drawer’s signature does not.
(2) the draft is not altered
(3) the warrantor has no knowledge that the drawer’s signature is unauthorized
Five Methods of Perfection
(1) filing (2) taking possession of the collateral (3) control (4) automatic perfection (5) temporary perfection.
Requirements of financing statement
The financing statement must contain
(i) the debtor’s name and mailing address
(ii) the secured party’s name and mailing address
(iii) an indication of the collateral covered by the financing statement and
(iv) if the financing statement covers real property-related collateral, a description of the related real property, and the name of the record owner.
Seriously misleading errors in the debtor’s name such that it cannot be discovered using the debtor’s correct name with the filing office’s standard search logic will invalidate the financing statement.
Name change: If the debtor’s name changes, the financing statement is only effective against collateral acquired by the debtor before the name became insufficient and within four months after. For collateral acquired after the four month period, the secured party must refile using the debtor’s correct name.
Generally must file in the office of the secretary of state.
Filing is valid for five years. A constitution statement may be filed, good for an additional five years. The continuation statement can be filed only within six months before the lapse of the filed statement.
Automatic Perfection-PMSI in Consumer Goods
A PMSI in consumer goods is perfected as soon as it attaches; neither filing nor possession by the creditor is necessary.
PMSI in Inventory Special Rule
A PMSI in inventory collateral has priority over a conflicting security interest in the same inventory or proceeds of the inventory that are chattel paper, instruments, or cash if:
(i) it is perfected at the time the debtor gets possession of the inventory (filing must take place before the inventory is delivered to the debtor); and
(ii) any secured party who has perfected his security interests in the same inventory receives a written notification of the PMSI before the debtor receives possession of the inventory and the notification states that the purchase money party has or expects to take a PMSI in the inventory of the debtor described by kind or type.
