Family Law

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Family Law
2011-06-23 22:39:41
Family Law

Texas Bar Exam - Family Law
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  1. Ceremonial Marriage
    1. validity not affected by lack of authority if:

    • - reasonable appearance of authority
    • - good faith by at least 1 party
    • - neither is a minor

    2. No license is necessary

    3. Don't have to be residents of State/County

    4. No formalities required as to the ceremony
  2. Void Marriage
    1. Bigamy

    - already married

    * But, if divorce or present spouse dies --> valid

    2. Consanguinity

    - marriage to: ascendants and descendants (parent, child), first line collaterals (sister, niece), aunt, step child or step parent, includes adopted relatives.

    - cousins not void, but no marriage license allowed

    3. Under 16 unless court order
  3. Anulment Grounds
    • 1. Underage
    • 2. Concealed divorce within 30 days of marriage (1 year SoL for annulment action)
    • 3. Impotency
    • 4. Incompetency
    • 5. Fraud, Duress, Force
    • 6. Under the influence of drugs or alcohol

    Limitation: no cohabitation after facts discovered, fraud/force removed, or effects of alcohol/drugs wear off

    7. marriage within 72-hour waiting period after issuance of license

    - Unless, in armed forces, 72-hour cooling off period waived by court, complete premarital education course

    - to annul, bring action within 30 days
  4. Grounds for Divorce
    1. Insupportability

    - discord or conflict of personalities that destroys the legitimate ends of the marriage relation and prevents any reasonable expectation of reconciliation

    - Defense: reasonable expectation of reconciliation; judge may order counseling if convinced and delay the divorce

    2. Cruel treatment

    3. Adultery

    4. Felony conviction

    5. Abandonment for more than a year

    6. Living apart for 3 years

    7. Mental hospital for over 3 years
  5. Procedural Requirements for Divorce
    6 month / 90 day test - one party must be:

    • - domiciled in TX for 6 months
    • - in the county for 90 days
  6. Annulment of marriage due to minority
    1. If brought by parent, managing conservator, or guardian - must file before 18th birthday

    2. If brought by child's next friend - within 90 days

    * Annulment is in the court's discretion
  7. Parental Consent for a Minor to Marry
    1. Parental consent cannot be stale - application for license must be within 30 days

    2. Parental consent not available if under 16
  8. Informal Marriage (common law)

    1. Agreement to be married

    • - presently
    • - prove by direct or circumstantial evidence

    2. Holding out

    - to others that are married

    3. Cohabitation

    • - in Texas
    • - no minimum time


    A. There cannot be an impediment to the marriage such as bigamy, consanguinity, or minority.

    B. Presumption - if action to establish common law marriage is not brought within 2 years after separation and end of cohabitation, rebuttable presumption arises of no agreement to be married

    C. Declaration of Informal Marriage - alternative way to establish common law marriage.

    -same info as license application: 18 or older, not married, no consanguinity, 3 elements of common law marriage.

    - This allows backdating of the effective date of the marriage
  9. Divorce Procedure
    1. Venue - county of residence of either party; 90 day test

    2. Pleadings - must have language of statute but no evidentiary facts or will be stricken

    - must state whether a protective order for family violence is in effect

    - Suit Affecting Parent-Child Relationship (SAPCR) must be joined

    3. Counseling - court may order counseling to determine if there is a reasonable chance of reconciliation

    4. Mediation - court may order. Mediated settlement binding and parties entitled to judgment on the agreement if:

    • (i) prominently states not subject to revocation;
    • (ii) signed by both parties;
    • (iii) signed by attorneys present

    5. Parent education and family stabilization course - court may order

    6. Collaborative law procedures - parties and attorneys agree in writing to use best efforts and good faith to resolve dispute without judicial intervention except to have the court approve the settlement agreement.

    - attorneys must withdraw if parties dont settle, cant be litigation counsel

    - 2 years to come to agreed settlement
  10. Texas Residents and Nonresident requirements to file for divorce in Texas
    1. Texas residents - either party lives for 6 months in TX, 90 days in county

    2. Nonresident of Texas - spouse is domiciled in TX for 6 months, nonresident may file in county of domicile and there is no 90 day requirement
  11. Protective Order
    1. Requires a showing of "family violence" :

    - act intended to result in physical harm, bodily injury, assault, sexual assault (including threats to do same)

    1. file with divorce or as independent cause of action

    2. venue - county where applicant or respondent resides

    3. Duration - max. 2 years; after 1 year can challenge need

    4. Counseling - court may order a battering prevention program or counsel with social worker

    5. Notice and hearing (between 48 hrs - 20 days after service) required
  12. Temporary Protective Order
    1. get pending the application for a Protective Order

    2. to protect against violence - court must find clear and present danger that a spouse will commit family violence again

    3. valid up to 20 days but may be extended on motion for 20 days

    4. can evict a spouse if file a sworn affidavit and appear to testify

    5. ex parte, no personal notice required
  13. Temporary Restraining Order
    Grounds for granting TRO - unreasonable acts of the sort no reasonable person could think he could commit such as vulgar calls, threats, removing, concealing or transferring property

    - file along with petition for divorce

    - ex parte, no notice required
  14. Temporary Injunction
    Grounds for granting - same unreasonable acts that would get a TRO and also for reasonable acts a person ordinarily could do or refrain from doing unless ordered by the court such as:

    • - awarding one spouse exclusive occupancy of the residence
    • - ordering payment of temporary support
    • - attorneys fees or other expenses
    • - requiring a sworn inventory
    • - requiring the production of books and records
    • - restricting access to books and records of family business
  15. Paternity Testing
    1. established by genetic testing

    - 99% probability based on paternity index of 100 to 1: court enters order man is that father

    2. Rebuttal - only other genetic evidence or written denial by presumed father and acknowledgment of paternity by another man can be used to rebut

    3. alleged father who refuses may be held in contempt or court may enter a default judgment adjudicating paternity

    4. no jury trial because only lab results matter
  16. Paternity Statute of Limitations
    1. no SoL if child has no presumed, acknowledged or adjudicated father

    2. if there is a presumed father, SoL is 4 years
  17. Retroactive child support after paternity established
    1. statutory presumption that 4 years of support is reasonable and in the child's best interest

    - rebuttable if man knew or should have known he was the father and sought to avoid establishment of the support obligation

    - court has power to order payment retroactive to child's birth
  18. Venue for Paternity
    county where child resides
  19. Presumption of paternity
    A man is presumed to be the father of a child if:

    1. born during (or within 300 days after) marriage or attempted (but void or voidable) marriage, or

    2. he married (or attempted to marry) the mother after the child's birth AND (a) acknowledged paternity in a record filed with the Bureau of Vital Statistics, OR (b) promised in a record to support the child, OR (c) was voluntarily named the father on the child's birth certificate

    3. during first 2 years of child's life he resided with child and represented to others the child was his. This is the only presumption that does not involve marriage.
  20. Paternity by Estoppel
    Because of party's conduct, court may deny genetic testing and issue an order adjudicating the presumed father to be the father, if the court finds that:

    1. conduct of the mother or presumed father estops a party from denying parentage, and

    2. it would be against child's best interest to disprove the father-child relationship

    * paternity by estoppel only applies to married persons

    Factors to consider for paternity by estoppel:

    a. length of time between when paternity action filed and notice might not be father;

    b. length of time presumed father assumed the role of father;

    c. facts surrounding discovery;

    d. childs age and relationship to presumed father;

    e. harm that would result to child if presumed paternity is disproved
  21. Representing the Child in a Paternity Action
    a minor or incapacitated child must be represented by a guardian ad litem
  22. Adoption
    A child may be adopted and a person may adopt, if:

    1. the parent-child relationship as to each living parent has been terminated or a suit for termination is joined with the adoption;

    2. both parents have died;

    3. Second marriage situation - a stepparent (spouse of parent whose P/C relationship has not been terminated) wants to adopt the child; or

    4. child is at least two years old, the P/C relationship has been terminated with respect to one parent, and

    a. the person seeking adoption has been a managing conservator or has had actual care, possession, and control of the child for 6 months preceding the adoption or is the child's former stepparent, and the non-terminated parent consents to the adoption.


    b. the person seeking the adoption is the former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of 1 year preceding the adoption
  23. Termination of the Parent-Child relationship
    1. Procedure - file Suit to Terminate the Parent-Child relationship

    2. Mother

    - can be filed after the first trimester of pregnancy

    - Affidavit of Relinquishment of Parental Rights will be signed by the mother which will lay the predicate for a Consent Decree terminating the parent-child relationship

    - a minor can sign the affidavit even though underage, but cannot be until 48 hours after birth

    3. Father

    - Affidavit of waiver of interest in the child
  24. Involuntary termination of father's rights in the child
    1. if, after being served, he does not respond by either admitting paternity or filing a counterclaim for paternity; or

    2. by failing to file with the paternity registry within 30 days after the child's birth; or

    3. by proof of culpable acts that are grounds for termination of parent-child relationship e.g., abandonment of mother during pregnancy, failure to support child
  25. Reports required before an adoption can be finalized
    1. pre-adoption social study - report by social worker into circumstances and conditions of home environment

    2. Host placement social study - same as 1

    3. report showing adopting parties' criminal history record

    4. Social, Health, Education, and Genetic history of the child (SHEG report). Including any abuse of the child.
  26. Adoption Procedure
    1. Both spouses must join in the petition for adoption

    • - adoption proceeding abates if they divorce
    • - does not abate if one of them dies

    2. child must reside with adoptive parents for 6 months before the final adoption decree can be entered, unless the court finds that waiver is in the child's best interests

    3. child is not required to give written consent unless he is 12 or older

    4. Managing conservator consent required. But, court can waive consent requirement if consent is withheld without good cause
  27. Adult Adoption
    - adoptee must consent and loses inheritance rights from birth parents
  28. Standing to file a petition to adopt
    Foster parents must have had possession of the child for at least 12 months but for other persons, the test is 6 months.
  29. Setting aside an adoption
    validity of an adoption is not subject to direct or collateral attack more than 6 months after the adoption decree is entered.

    - key concern is best interest of the child. We want to avoid heart wrenching "Baby Tschoepe" scenes.
  30. Adoption when parent is still living
    1. the parent's parental rights must be terminated by terminating the parent-child relationship

    A. Voluntarily - file a voluntary termination proceeding and sign an affidavit of relinquishment of parental rights

    B. Involuntary - file an involuntary termination proceeding. Show grounds + best interests by clear and convincing evidence

    - establish one of these grounds: abandonment; abuse; neglect; endangering the child (physical and emotional health); imprisonment for over 2 years; culpable acts toward the child or another child; failure to support child for one year; use of controlled substance

    - AND show best interest of the child
  31. Custody - Managing Conservator and Possessory Conservator
    1. Managing Conservator (MC) - custody of child

    2. Possessory Conservator (PC) - awarded visitation
  32. Factors/Considerations for determining Managing Conservator and Possessory Conservator
    1. Best interest of the child

    - positive best interest factors: desires of child; child's physical and emotional needs; parental ability; stability of home environment; parent's plans; opportunities for the child; excuses for any acts or omissions

    - negative factors: intentional use of force against spouse, child's other parent, or any child in the past 2 years, and acts or omissions showing that one parent is less fit than the other

    2. past domestic violence, false reports of child abuse

    3. Not - gender; marital status
  33. Adjudication of the Managing Conservator issue
    1. party is entitled to a verdict by the jury and the court cannot contravene the verdict unless there is no evidence to uphold it

    2. in a non jury trial, a court (upon application or its own motion) shall interview a child 12 or older in chambers and may interview a younger child.
  34. Multiple children - split custody
    preference to keep children together as a family unit
  35. Parent Preference to be Appointed Managing Conservator
    1. A parent must be appointed sole MC (or both parents appointed Joint MCs) unless the court finds appointment of a parent would not be in the child's best interest because it would substantially impair the child's physical health or emotional development

    2. parental preference to be appointed MC is rebutted if the court finds that:

    a. parent has relinquished actual care, control, possession to nonparent for a year, a portion of which was 90 days preceding intervention or filing of suit; and

    b. the appointment of the nonparent is in the child's best interest
  36. Custody: Joint Managing Conservatorship
    There is a presumption that a JMC is in the child's best interest. Court can order JMCs if in the child's best interests and

    • 1. child's physical, psychological, or emotional needs will benefit;
    • 2. parents have shown the ability to reach shared decisions;
    • 3. parent can encourage and accept positive relationship between child and other parent
    • 4. both parents participated in child rearing before the suit was filed
    • 5. geographical proximity of homes of the parents is not a problem
    • 6. child's preferences
    • 7. no evidence of history or pattern of physical or sexual abuse


    a. JMC does not require equal periods of physical possession of the child

    b. exclusive power to make certain decisions can be given to one JMC, known as the primary JMC

    c. a court order of JMC must designate the conservator with the exclusive right to determine the child's primary residence and must either establish a geographical area of primary residence or specifiy conservator who can determine primary residence without regard to geographical location

    d. an agreed JMC must comport to c. or can provide that the child's primary residence shall be within a specified geographical area

    e. either JMC can be ordered to pay child support
  37. Parenting Plan
    1. A final order in a SAPCR tied to a dissolution proceeding must incorporate a parenting plan that:

    • - sets out the rights and duties of each parent
    • -provides for periods of possession and access to the child
    • - provides for child support
    • -optimizes development of close and continuing relationship between each parent and child

    2. if the parties have not reached agreement on a parenting plan at least 30 days before trial, either party may file a proposed parenting plan for the court's consideration

    3. In high conflict cases, the court may appoint a parenting coordinator (impartial 3rd party to help resolve issues) or a parenting facilitator (monitors compliance with court order plus does what coordinator does)