Family Composition

Question 1

Family Composition

Answer 1

• Texas Family Code articulates the rights and duties owed by spouses as well as rights and duties of children.
• A family relations is created through marriage or also through the birth (or adoption) of a child. BY BLOOD OR BY LAW.
• It is NOT created by authorizations or legal guardianship

Question 2

Who is MOM?

Answer 2

1. A woman who gives birth to the child.
2. A woman who adopts a child.
3. A woman who has been adjudicated the parent of the child.
4. A woman who has been adjudicated the mother of a child who was born to a gestational mother under a validated or enforceable gestational agreement.

Question 3

Who is DAD?

Answer 3

1. Presumed father—must beunrefuted
2. Acknowledged father—properly filled out and filed an Acknowledgement of Paternity (referred to as AOPs)
3. Adoptive father
4. Adjudicated father
5. Husband consenting to assisted reproduction by his wife resulting in the birth of a child (not his sperm)
6. Unmarried man intending to be a father, who provides sperm to a licensed physician and consenting to assisted reproduction by an unmarried woman resulting in the birth of the child. Both mother and father must consent and sign a document to be kept by the physician.
7. Adjudication confirming man as the father of the child born to a gestational mother under a validated or enforceable gestational agreement.

Question 4

Rights of Spouses

Answer 4

• Rights of an adult: Once a person is married under Texas law, regardless of age, that person has the capacity and power of an adult with some statutory exceptions. E.g., right to vote (18); buying, possessing or consuming alcohol (21); buying, possessing, consuming tobacco and e-cigarettes (21).
• Right to make contracts: Each spouse has the capacity to enter into contracts.
• Right to litigate: each spouse may sue or be sued without the other spouse being joined in the lawsuit.

Question 5

Spouse’s Duties to Each Other

Answer 5

• Duty of Support: each spouse has the duty to support the other spouse. It is a legal duty arising from the parties’ status as spouses.
• Each spouse must use their separate property, if necessary, to provide support for community living expenses (i.e. necessaries).
• Separate property used for community living expenses is deemed a gift for the benefit of the community estate.
• Spouse using separate property cannot seek reimbursement from the community estate for necessaries.
• Necessaries typically include food, clothing and shelter.

Question 6

Fiduciary Duty

Answer 6

• Each spouse owes the other a fiduciary duty regarding their community property.
• Breach of duty leads to a presumption of constructive fraud.
• Fiduciary duty terminates in a contested divorce once each spouse is independently represented by counsel.
• Otherwise, fiduciary duty ends when marriage is dissolved.

Question 7

Liabilities of Spouses

Answer 7

• Torts committed by spouse against other spouse or a third party.
• No interspousal immunity. Texas abolished this immunity for intentional torts in 1977 and for negligence actions in 1987.
• Can sue your spouse for intentional infliction of emotional distress; assault; invasion of privacy; illegal wiretapping
• Torts against a third party
• Individual liability when a spouse commits a tort against a third party, that spouse can be held individually liable.
• Joint liability when both spouses commit a tort against a third party, the spouses can be held jointly liable for their conduct.

Question 8

Joint Liability: Tortfeasors

Answer 8

When one spouse commits a tort against a third party, the other spouse can be held liable for the tortfeasor-spouse’s conduct only if the conduct can be attributed to the other spouse under general principles of agency.

Question 9

Liability fo Contracts

Answer 9

1. A spouse can be held individually liable for any contractual obligation incurred by that spouse or on that spouse’s behalf. During a marriage, contractual obligations usually arise from the borrowing of money or the extension of credit to purchase real or personal property. E.g., credit cards, loans, mortgages.
2. Individual liability: a spouse becomes individually liable for a contractual obligation upon signing the contract. If only one spouse signs the contract, the other spouse cannot be held jointly liable for the obligation incurred, unless the signing spouse was acting as the non-signing spouse’s agent or the contractual obligation was for necessaries.
3. Joint liability: both spouses become jointly liable when both spouses sign the contract, or one spouse is acting as the non-signing spouse’s agent, or contract is for necessaries.

Question 10

Liability for Taxes

Answer 10

• Generally, each spouse is liable for the federal income tax on one-half of all community income, regardless of which spouse has control over the community income.
• Tax status:
• Married filing jointly: generally, spouses are jointly and severally liable for the full amount of taxes due on their combined incomes (even if only one spouse was the income earner in the marriage).
• Married filing separately: Spouse personally liable only for the federal income tax on that return. But because Texas is a community property state, each spouse is liable for one-half of the community income and for any separate income earned by that spouse. If wife has salary of $100,000 (community income) and her husband had a salary of $50,000 (community income), each spouse would be personally liable for federal income tax on $75,000 if they filed separately.

Question 11

Liability of Parents Torts

Answer 11

• Generally, a parent cannot be held civilly liable to a minor child for acts of ordinary negligence that involve parental authority or parental discretion.
• Examples of parental authority actions involve: supervision; discipline; provisions of home or food; schooling; medical care; family chores; and recreation.
• Examples of parental discretion: food, clothing, shelter (basically anything that a parent is obligated to provide)

Question 12

Liability of Parents Torts Exceptions

Answer 12

1. Intentional or malicious acts;
2. Employment related injuries (if parent employs the child);
3. Automobile accidents (child can sue parents for negligent operation of an automobile).
4. Abandonment or abdication of parental responsibility (child must show parent absolutely relinquished or utterly renounced all parental responsibility.)

Question 13

Parental Liability for Torts Committed by Child

Answer 13

• Generally, minors are civilly liable for their own torts. Parents are not liable for torts committed by their child merely because of the parent-child relationship, unless the tort committed by the child is one of the following:
• Negligent entrustment: e.g., parent can be held liable for negligently entrusting a motor vehicle to their child who they know is unlicensed, incompetent, or reckless driver.
• Negligent supervision: parents can be liable for not restraining their child who they know has dangerous tendencies or for leaving a dangerous instrumentality where their child may have access to it.
• Property damage: parents can be liable for property damage caused by their child if the child’s conduct was negligent and reasonably attributable to the parent negligently exercising duty of control or discipline; or the child is between the ages of 10-18 and the child’s conduct was willful and malicious.

Question 14

Parental Liability for Crimes Committed by Child

Answer 14

1. Theft: a parent can be civilly liable for up to $5,000 for a theft committed by their child.
2. Delinquent conduct: a parent can be made liable under a juvenile court order for a child’s delinquent conduct or conduct indicating a need for supervision.
   * Parent can be ordered to pay restitution, e.g. parents ordered to pay $5k for property stolen and damaged during burglary; parent ordered to make restitution to insurance company for damage to stolen car.

• Parent may be liable for attorney’s fees (e.g., child’s court appointed attorney)
• Parent may be required to perform community service
• Parent may be required to pay child’s probation fees.