Texas Family Law Bar Memorization Notes
What are the requirements for a valid ceremonial marriage? A reasonable appearance of authority & at least one party acting in good faith. A valid marriage license is not required, but if there is no license the marriage must be established by proof.
How does a common law marriage arise? To establish a CL marriage (informal marriage) it must be shown that the parties agreed to be married, lived together as husband & wife (cohabitation) & held themselves out to others that they were married.
How can an already established informal marriage be proved? By executing & recording a sworn “Declaration of Informal Marriage”. It contains an attestation that both parties are 18 or older, neither is already married, & that the applicants are not related w/in the prohibited degree of consanguinity.
What makes a marriage void? 2 things: 1) consanguinity – marriage of brother, sister, aunt, uncle, niece, or nephew & includes half-bloods. 2) Bigamy – when the other marriage is dissolved, the current marriage becomes valid by operation of law. Children of void marriages are marital children for all purposes.
What makes a marriage voidable? 5 things: 1) Underage – if a child is married w/out consent, a suit may be brought to annul. Marriage is voidable at discretion of the court. 2) Alcohol or Narcotics; Permanent Impotency; Fraud, Duress, Force – if at the time of the marriage any were present. 3) Mental Incapacity – brought by either party. 4) Concealed divorce w/in 30 days of marriage – if the petitioner did not know, & a reasonable person would not have known, must be brought w/in 1 year; 5) Marriage less than 72 hours after issuance of license – if brought w/in 30 days. In all but minor & 72 hour rule, a party cannot annul if they voluntarily cohabitated after the situation was discovered.
What powers & duties arise from a marriage? The power of capacity is given regardless of age to all who are married. There is a duty of support – each spouse has a duty to support the other spouse & her minor children. As a result each spouse is personally liable for contracts for necessaries.
What are the grounds for a no fault divorce & how can it be defended? A no fault divorce will be granted upon the ground that a marriage has become unsupportable. The only defense is a reasonable expectation of reconciliation.
What are the grounds for a fault based divorce (6 grounds)? Adultery, Cruel treatment, Abandonment for more than a year, living apart for at least three years, confinement in mental hospital for at least three years, & conviction of a felony (at least 1 year imprisonment). The only defense is a denial of grounds.
On what grounds can a spouse recover damages in a divorce? A spouse can recover for IIED. In dividing the community estate, fault can be considered, but a spouse cannot recover both a disproportionate share of the estate & tort damages based on the same conduct. There is no independent COA in tort for damage to the community estate.
What power does the court have to determine if there is a reasonable expectation of reconciliation? A court can order the parties to submit to counseling to determine if there is a reasonable expectation of reconciliation, & can order additional counseling for an additional 60 days if the court believes that there is a reasonable expectation of reconciliation. The counselor will submit a report to the court giving her opinion as to the prospects of reconciliation.
What are the standing requirements for a divorce in Texas? The petitioner needs to have domiciled in Texas for the last 6 months & in the particular county for at least 90 days. A non-resident may petition in the county of appropriate venue for their spouse who meets residency requirements. A court does not need personal jurisdiction over both parties to grant a divorce.
What are the requirements for a suit for annulment or to declare a marriage void? These actions may only be maintained if the parties were married in Texas or either party is a domiciliary of Texas.
What is required for long arm jurisdiction over nonresident spouse? A court has personal jurisdiction over the defendant if Texas is the last marital residence of the spouses & the suit is commenced w/in 2 years after the date on which marital residence ended or any basis that doesn’t offend the state or federal constitution.
What is contained in the pleadings for a divorce/annulment/suit to declare a marriage void? The pleadings contain allegations of the grounds relied on substantially in the language of the statute & must not contain a detailed statement of evidentiary facts. A petition must state whether a protective order for domestic violence is pending or in effect.
What must be filed w/a dissolution of marriage petition if there are minor children from the marriage? If the parties are parents of a minor child, the action must include a separate “suit affecting parent child relationship” SAPCR.
What restrictions are there on transfers & debts while a divorce is pending? After the petition for divorce a transfer of CP or the incurrence of a community obligation is void w/respect to the other spouse if there is an intent to injure the rights of the other spouse, but it is not void w/respect to third parties if they have no notice. Notice to third parties can be given by filing a lis pendens.
Are jury trials available? Yes, but the findings are only advisory on all issues except child custody.
Is there a waiting period for a divorce? Yes, 60 days but a decree entered in a shorter period is not subject to a collateral attack.
Is there any informal procedure for an uncontested divorce? Yes, the parties could agree to use collaborative law procedures or mediation. For collaborative law procedures, the parties & attorneys agree in writing to use their best efforts & make a good faith attempt to resolve their dispute w/out judicial intervention except to have the court approve the agreement. The attorneys must agree that if the parties do not settle, the attorneys will withdraw from the case & will not serve as litigation counsel. Status report filed w/court after 180 days & 1 year, after 2 years the case is dismissed or set for trial. In mediation, the agreement is binding if it so states, is signed by both parties, & their attorneys if present. A mediated settlement that meets these requirements is entitled to a judgment on the agreement.
When can a protective order be issued? A protective order can be granted upon a showing that the other party has committed family or dating violence, which consists of intentional use or threat of physical harm. Venue is county where either applicant or respondent resides. Maximum duration is 2 years, but 1 year after it is ordered subject can request a determination of whether it is still necessary. Court can order respondent to complete a battering intervention & prevention program, counsel w/a social worker, or perform acts the court determines are appropriate to prevent or reduce the likelihood of family violence in the future. Notice & hearing is required.
When can a temporary protective order be issued? A TPO can be issued ex parte if the court finds clear & present danger that spouse will commit family violence again. A TPO is valid for 20 days, but can be extended for an additional 20 days. A TPO can evict spouse from family home if (i) spouse files a sworn affidavit giving a description of the facts supporting the TPO; & (ii) spouse appears in person to testify.
In divorce proceedings what can a TRO be used for? A TRO can be granted ex parte when there are unreasonable acts of the sort that no reasonable person could think he or she could commit, e.g.: vulgar telephone calls w/intent to annoy & alarm, threats of bodily injury, falsifying records, removing, concealing transferring property, etc… A TRO cannot be granted for reasonable acts.
In divorce proceedings what can a temporary injunction be used for? After notice & hearing, a court may issue a temporary injunction barring unreasonable acts & reasonable acts that the person could ordinarily do. A temporary injunction can also be used to award one spouse exclusive use of the residence, order payment of temporary support, attorneys fees, require a sworn inventory or require the production of the books from a family business.
What is the presumption of paternity in context of marriage? A man is presumed to be the father of a child if 1) the child is born during the marriage or w/in 300 days after the marriage is terminated; or 2) the man married the child’s mother after the child’s birth, & he voluntarily asserted his paternity by filing a record w/the bureau of vital statistics, agreed to be named on the child’s birth certificate, or promising in a record to support child as his own; 3) During the first 2 yrs of child's life, he resided with the child & represented to others the child was his.
How can the presumption of paternity be challenged? Either genetic testing or a written denial of paternity coupled w/a written acknowledgment of paternity by another man. Generally the challenge must be brought w/in 4 years, unless the court finds that the presumed father & mother did not live together or engage in intercourse during the probable time of conception & the presumed father never openly treated the child as his own.
Can a court prevent genetic testing? Yes, this is called paternity by estoppel. The court may issue an order denying genetic testing & adjudicating the presumed father to be the father of the child if the court determines that the conduct of the mother or father estops that party from denying parentage, & it would be inequitable & against the best interest of the child to disprove the father-child relationship.
What does a genetic test have to show to establish paternity? The test must establish at least a 99% probability that the man is the father, based on a paternity index of at least 100 to 1.
What liability does a parent have for the torts of a child? A parent is liable w/no dollar limit for property damage caused by child’s negligent conduct if reasonably attributable to negligent failure to exercise parental control or discipline. A parent is liable for willful or malicious conduct of a child age 12 or older; liability is limited to $25k per act + court costs & attorneys fees. A parent is also liable for actual damages, up to $5k, plus court costs & attorneys’ fees for any theft committed by the child.
How can a 3rd party challenge the presumption of paternity of a child? 3rd party must file an action w/in 4 years & submit to genetic testing.
How is back child support handled? The court can order the payment of child support retroactive from the child’s birth. There is a statutory presumption that retroactive support for the previous 4 years is reasonable & in the child’s best interest. Presumption can be rebutted by a showing that the man knew or should have known that he was the father & sought to avoid establishment of a support obligation.
When may a child be adopted? When both parents have died; the parent-child relationship as to each living parent has been terminated; or in second marriage situation. All adoptions are subject to the best interest test.
How is an infant adoption accomplished? A petition to terminate the PC relationship is filed; affidavit of status of child is signed by mother after first trimester; affidavit of relinquishment of parental rights signed by mother; affidavit of waiver of interest in child is signed by father.
What is an alleged father’s rights w/respect to a proposed adoption? Alleged father has the right to bring a paternity suit. If he refuses to sign affidavit, his rights can be involuntarily terminated upon a showing that he didn’t respond to the process after being served, failed to file w/the paternity registry w/in 30 days after the child’s birth, or by proof of culpable acts that are grounds for termination of PC relationship – e.g. abandonment during pregnancy.
34. What grounds are sufficient for an involuntary termination of the PC relationship? (8) Abandonment, abuse, neglect, imprisonment for over 2 years, culpable acts toward child or another child, *failure to support child for one year, use of controlled substance, statutory test – best interest of child. Proof by C&C ev.
35. What reports must be completed before an adoption can be finalized? A pre-adoption screening; a post-placement adoption report; a report showing adopting parent’s criminal history; & SHEG report (Social, Health, Education, & Genetic history) including any history of abuse suffered by child.
36. What factors does a court consider in the appointment of a managing conservator? Statutory: Best interest of child, no discrimination based on gender or marital status, evidence of past domestic violence, evidence of false report of child abuse. CL: Desires of child, child’s physical & emotional needs, parental ability, stability of home environment, parent’s plans & opportunities for the child, acts & omissions showing one is less-fit than other. Either party can request a jury determination which is binding on the court. Split custody is allowable but there is a strong preference to keep children together.
37. When will visitation be denied? Only upon a showing of danger to the child’s physical or emotional health. Upon motion the court can restrict visitation.
38. When can a court allow a joint managing conservatorship? When the court finds it is in the child’s best interest (statutory presumption) & the child’s physical, emotional, or psychological needs will benefit; parents have shown an ability to reach shared decisions; both parents participated in child rearing.
39. What are the major aspects of a joint managing conservatorship? Exclusive power to make certain decisions are given to one JMC - the primary JMC. JMC does not require equal or nearly equal physical possession of child. The court order must establish the child’s residence, or designate which JMC has the exclusive right to determine; include provisions to minimize the disruption of child’s schooling, daily routine & association w/friends; & set out rights & duties to be exercised solely by one JMC & those decisions to be exercised jointly. One party can be order to pay child support.
40. How is visitation awarded? Visitation must be a Standard Possession Order unless parties agree otherwise. If parents live w/in 100 miles, non-custodial parent gets one evening per week; every other weekend; & 30 days in the summer. Non-custodial parent must pay for travel expenses related to visitation if they have resources to do so.
41. What is the scope of the child support obligation? Court ordered child support must terminate upon child reaching 18 or graduating high-school (whichever is later). It also terminates upon child’s marriage, but not on obligor’s death. Obligor parent must be ordered to provide health insurance.
42. What remedies are available for the enforcement of child support? [MMC LLL] All final orders for child support must provide for Mandatory withholding. The maximum amount is 50% of take-home pay. If obligor is self-employed he can be required to post bond. Other remedies include Money judgment + 6% interest, Contempt, License suspension, child-support Lien for arrearages, Levy & execution of financial assets.
43. How can a TX child support order be enforced outside of TX? Under the Uniform Interstate Family Support Act [UIFSA] a party sends 2 copies of the support order (one certified) to the foreign court, together w/a sworn statement of the party showing the name & address of the obligor (& if known the address of the employer). Upon registration, the order becomes an order from that state & will be enforceable by traditional means. A party could also reduce arrearages to judgment & it will be enforceable under full faith & credit. Party can also mail obligor’s employer a copy of the income withholding order. This automatically triggers withholding unless obligor contests the validity of the order. Also try their attorney general child support division.
44. What remedies are available to enforce a child custody order? Habeus corpus, tort liability for interference w/child custody, contempt.
45. What does a habeas corpus action entail when used to enforce a custody order? The sole issue will be whether there was a valid court order awarding custody. The other parent cannot counterclaim for reconsideration of custody. Exceptions – whether custody order complied w/DP, temporary order can be issued if there is a serious immediate question concerning child’s welfare; court may consider a cross motion for custody if the child has not been in the relator’s possession at any time w/in the past 6 months.
46. When can a habeas corpus action be brought w/out a prior court award of custody? When a non-parent is withholding custody of a child.
47. What are the grounds for interference w/child custody & who can it be brought against? Action is available against non custodial parent who kidnaps the child or withholds in violation of a visitation order. Can also be brought against third parties who aid & abet (even attorney). Allows for actual & punitive damages. Must give notice by registered or certified mail of intent to file tort suit in 30 days unless custody order is complied with.
48. Who has jurisdiction over a child custody dispute involving parties from multiple states? Under the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA), the SAPCR court has continuing, exclusive jurisdiction as long as at least one party continues to reside in that state; then, the primary test is home-state jurisdiction which is the child’s home state or the state in which child has lived for at least 6 consecutive months. Temporary emergency jurisdiction is then available where child has been abandoned or abused; a state can take jurisdiction if no other state accepts jurisdiction & there is a significant connection & substantial evidence in the state.
49. How can another state’s custody order be enforced in Texas? Under UCCJEA, the order can be registered in Texas & enforced in the same manner as a Texas order. There is also an expedited enforcement in habeas type proceeding. Also a court can issue a warrant to take immediate possession of child on a finding that the child is imminently likely to suffer serious physical harm or be removed from the state.
50. How can a child support order be modified? A motion to modify support order is filed in the SAPCR court. The motion must state that circumstances of child or affected party have materially & substantially changed or that 3 years have elapsed since the order was entered or last modified, & the amount of support differs from the statutory guidelines by either 20% or $100. Parents cannot agree to modify or settle a claim for arrearages w/out court approval.
51. How can a custody order be modified? A motion to modify managing conservator is filed in the SAPCR court. The motion must state that modification would be in best interest of child & that circumstances have materially & substantially changed; or the child is at least 12 & has filed a document w/the court indicating who she wants to live with; or the custodial parent has voluntarily relinquished the primary care & possession of the child for at least 6 months. A modification cannot be sought w/in 1 year of a prior determination absent special circumstances.
52. Can grandparents be given court ordered visitation? Yes, A grandparent can file a grandparent’s petition for reasonable access. Generally either the child has lived w/the grandparents for 6 months or the child’s parent is not available. But, the grandparent’s rights § may not be constitutional. US Supreme court ruled a similar statute unconstitutional. Texas courts split.
53. What must a professional do if he suspects that a child is being abused? A professional who believes a child has been physically or mentally abused or neglected must report the information w/in 48 hours. The duty cannot be delegated. The identity of the person making the report is confidential, & a person who in good faith reports the abuse or neglect cannot be liable civilly or criminally. Failure to report is a misdemeanor.
54. What can the state do if they suspect that a child is being abused? The Tex. Dept. of Protective & Regulatory Services (TDPRS) can take possession of a child w/out a court order upon information that would lead a person of ordinary prudence & caution to believe the child was a victim of child abuse or sexual abuse. An ex parte hearing must be w/in 3 days & parents must be given notice. To retain the child the TDPRS must present sufficient evidence to show a continuing danger & a reasonable likelihood that the child will be the victim of abuse in the future
Citation: The Mind of Chris Meyer
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