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Texas Bar Exam: Essay Topics > Family Law > Flashcards

Flashcards in Family Law Deck (119)
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Can a marriage license expire?

Yes if a marriage ceremony does not occur before the 90th day after the license is issued.


Marriage is a _________?

Status. You are either married or you are single.


Does Texas recognize marriages in other states?

Yes. Generally, Texas recognizes any marriages contracted elsewhere if the marriage was VALID where contracted.

Exception - Texas does not recognize any same-sex marriage or marriage like relationships based upon a same-sex relationship. Violates public policy.


Does Texas allow non-marital cohabitation agreements?

Yes. They must specify all aspect of the agreement IN WRITING BEFORE the relationship begins. This is NOT LIMITED to same-sex relationships.


What are the different ways to get married? What are the requirements for each?


1) Obtain a license from a county clerk on an application;

2) Fill out the application under OATH;

3) Provide proof of identity (you are who you claim you are;

4) Must be 18, provide parental consent if between 16 and 18 (consent must be given within 30 days before the application is filled out), or provide court order if under 16;

5) You are not related to each other within two degrees of consanguinity OR affinity; AND

6) You are NOT CURRENTLY MARRIED already to someone else or IF YOU WERE MARRIED, it ended by death or divorce.


How long must you wait after divorce to get married?

There is a 30-day waiting period before you can get married again UNLESS it's the same parties in the divorce that are remarrying.

This creates a VOIDABLE marriage giving rise to the ability to seek an annulment. The petitioner cannot have known about the previous marriage AND a reasonable person should not have known. Further, as with all annulments, the petitioner must immediately cease cohabiting with the other party.


Is there a waiting period after getting a marriage license? If so, can it be waived?

Yes. There is a 72-hour waiting period. If a marriage occurs within this period, there is a 30-day statute of limitations in which the court can grant an annulment.

Can be waived if a party is in the military or on active duty; the parties participated in marriage counseling; OR the parties can present other good evidence to the court.


What is a declaration of registration?

A couple can register their INFORMAL MARRIAGE if they meet the following:

1) BOTH over the age of 18;

2) Informally married;

3) Fill out the required form AND SELECT THE DATE ON WHICH THE RELATIONSHIP BEGAN (can backdate marriage to determine what property is community property and what is separate property; AND

4) Must sign and register the declaration with the COUNTY CLERK under oath.


What are the requirements for common law marriage?

1) Agreement - the parties must establish that they intend to be married (does not have to be expressed);

2) Cohabitation - the parties must live together FOR ANY PERIOD OF TIME; AND

3) Hold out - the parties must hold themselves out to the public as being married to each other.


As far as marital status goes, is there any difference between formally married couples and informally married couples?


The only difference is that if informally married couples live apart and separate for more than 2 years, there is a PRESUMPTION that there was never a marriage in the first place. This presumption can be overcome by CLEAR AND CONVINCING evidence.


Can courts require a medical exam or premarital education to get married?



What is the effective date of a formal marriage?

The date of the ceremony (NOT the issuing date of the license).


What is required to have a valid marriage ceremony?

The party performing the ceremony must have ACTUAL AUTHORITY to do so.

However, if they do not have actual authority but rather the APPEARANCE of authority, and ONE party to the marriage believed that person had authority, the marriage will still be valid.


What are the consanguinity and affinity limitations?

CANNOT marry any ancestor or descendant by blood or adoption of the whole or half blood. This includes: brother, sister, niece, nephew, aunt, uncle, mother, father, and any CURRENT OR FORMER step-parents or step-children (you can marry any other step-relation).


How does Texas treat children of void marriages due to marrying within two degrees of consanguinity or affinity?

There are NO ILLEGITIMATE CHILDREN IN TEXAS. A child is the legitimate heir of both its mother and father once they are identified.


What are annullable marriages?

These are marriages that can be set aside based on:

1) Lack of CAPACITY of one of the parties due to consumption of alcohol or narcotics;

2) Impotency UNKNOWN before marriage; OR

3) Fraud (that goes to the essentials of marriage), duress, or force used in the inducement; AND

4) A party MUST CEASE COHABITATION and seek the annulment as soon as the basis for an annulment is discovered.

NOTE: Marriages between 16 and 18 without parental consent are annullable marriages. These actions can be brought by a parent within 90 days of the marriage AND BEFORE the child turns 18.


What are void marriages? Who may bring a claim to void a marriage? Do both parties have to be present?

These are those marriages which are:

1) Contracted by people who are UNDER THE AGE OF 16 without a court order;

2) Contracted by people related within a prohibited degree of consanguinity or affinity; OR

3) In Texas, contracted by people of the same sex.

These actions to set aside the marriage can be brought by EITHER PARTY in an EX PARTE hearing (only one party required).


What are the duties of spouses?

Duty to support each other and their children born or adopted into that community.

Liable for ALL NECESSITIES IN LIFE (food, medical care, clothing, shelter, etc.

Duty not to negligently or intentionally harm each other.


Does Texas have inter-spousal immunity?

No. Spouses may sue each other for intentional and negligent torts.


Property acquired during the marriage is ________?

Presumed to be community property.


T/F - Spouses can recover for IIED.

Yes, a spouse can recover for ONLY EXTREME AND OUTRAGEOUS conduct inflicted intentionally or recklessly causing severe emotional distress.


Does Texas recognize actions against third parties for interfering with a relationship between spouses?

No. Criminal conversion (someone boinked your wife) and alienation of affection (stole your spouse from you) are not recognized causes of action in Texas.


What can a spouse seek if their spouse is seriously injured or killed?

May bring a claim for LOSS OF CONSORTIUM when a third party's tortious conduct causes death or injury to a spouse and the other spouse lost the companionship and affection of the spouse harmed due to that event (usually a wrongful death action.

Loss of consortium is NOT alienation of affection.


Are there limits to bringing an IIED claim against a spouse?

Yes. If brought, a plaintiff spouse CANNOT recover tort damages AND an unequal distribution of community property (this would be a double recovery). You must choose one or the other.


Define "severe emotional distress." Who determines what is severe enough?

Highly unpleasant mental reaction such as grief, shame, humiliation, embarrassment, anger, disappointment, or worry that is usually accompanied by a physical manifestation (headaches/sleeplessness) to an extent such that a REASONABLE PERSON COULD NOT BE EXPECTED TO ENDURE the conduct.

Reasonable person standard is a question for the jury since Texas allows jury trials in divorce cases.


Name the ways a marriage may be dissolved.

Death, divorce, annulment, or a suit to have the marriage declared void.


What type of divorce state is Texas?



Texas divorce cases are three cases in one. What are they?

1) Dissolution of the marital relationship;


3) Division of the community property estate.


What is "in rem" jurisdiction for the dissolution of a marriage?

Court has "in rem" jurisdiction (jurisdiction over the subject matter of the case / don't confuse with subject matter jurisdiction) of a divorce case filed by one party who is a domiciliary (6 months in the state) and resident (90 days in the county filed) of Texas.


T/F - Both parties must be present in court for judgment to be made on the divorce.

False. Just one party.