Family Law/Community Property

Question 1

partition or exchange of community property

Answer 1

spouses can partition or exchange their community property, including income, increases, and after-acquired property.

Question 2

statutory defenses to Premarital/Martial agreements

Answer 2

(1) did not sign agreement voluntarily; OR
(2) agreement was unconscionable when signed AND prior to signing spouse was not provided a fair disclosure of property and obligations, spouse did not waive disclosure, and spouse could not have reasonably known of property or obligations

threatening a legal right is not duress, it is fine to state “will not marry you if you do not sign”

Question 3

factors for unconscionability (marital agreements)

Answer 3

(1) entire atmosphere; (2) available alternative; (3) non-bargaining ability of one party; (4) if K is illegal or against public policy; and (5) whether K is oppressive or unreasonable

Question 4

retroactive child support

Answer 4

it is presumed that a court order limiting the amount of retroactive support to no more than 4 years before the date the petition was filed is reasonable and in the best interest of the child

presumption is rebutted with evidence that obligor (1) knew or should have known he was the father; and (2) sought to avoid paying child support

Question 5

disproving paternity

Answer 5

(1) presumed father and mother did not live together or engage in sexual intercourse during the probable time of conception; OR (2) presumed father was precluded from commencing the proceeding because of a mistaken belief he was the father based on a misrepresentation that led him to that conclusion

Question 6

genetic testing (paternity)

Answer 6

court may deny motion if, based on clear and convincing evidence, determines that (1) the conduct of the parent estops him from denying parentage; and (2) it would be inequitable to disprove the relationship

in determining the later, the court must look at best interest of the child and: (1) time between the proceeding and when the presumed father was put on notice; (2) time father has assumed the role of father; (3) facts around discovery of possible non-paternity; (4) nature of relationship between child and presumed father; (5) age of the child; (6) any harm that may result to the child if paternity is disproved; and (7) other factors that may arise from the disruption of father-child relationship

Question 7

offsetting reimbursement claim with child support

Answer 7

courts can resolve a claim for reimbursement by using equitable principles, including the principle that claims may be offset against each other if the court determines it to be appropriate.

A court MAY NOT recognize a claim for reimbursement for the payment of child support or the living expenses of a child

Question 8

conservatorship

Answer 8

it is a rebuttable presumption that joint managing conservatorship is in the best interest of the child and the court MUST make findings of fact to overcome this presumption and proof by clear and convincing evidence. A history of family violence removes this presumption

court considers evidence of intentional use of physical force, or evidence of sexual abuse, by a party against the spouse, child’s parent, or any person under 18, committed within 2 years before or during suit

Question 9

modifying conservatorship

Answer 9

(1) best interest of the child and

(2) material and substantial change in circumstances since rendition of the last order

Question 10

Court abuse of discretion

Answer 10

acting without reference to guiding principles (acted in an arbitrary or unreasonable manner)

Question 11

Obligor’s intentional unemployment

Answer 11

if actual income is significantly less than what he could earn because of intentional underemployment or unemployment, court may apply the guidelines to his earning potential (not just his actual earnings)

Question 12

Child support guidelines

Answer 12

statutory guidelines apply to obligor’s monthly net resources, or $8,550, whichever is less

presumptive amount for one child is 20% of net resources. increases by 5% for each child (up to 40%)

obligation ends when (1) child reaches 18 or graduates high school; (2) child emancipates; (3) child dies; or (4) for an indefinite period of time if child is disabled

Question 13

Deviation from Child support guidelines

Answer 13

courts can deviate after looking at all of the relevant factors, including: (1) special needs of the child; (2) ability of the parents to pay; (3) amount of possession and access to the child; and (4) financial resources available for child support

must make specific findings as to the reasons that justify the deviation. Failure to do so is a reversible error.

Question 14

Informal marriage (common law marriage)

Answer 14

(1) declaration of the marriage has been signed; or (2) the couple agreed to be married and after the agreement they lived together as spouses and represented to others they were married

proof must be commenced before the 2nd anniversary of the couple ceasing to live together, otherwise there is a rebuttable presumption the parties did not enter into an agreement to be married

Question 15

community property

Answer 15

all property owned or claimed by either spouse during or on dissolution of the marriage. Presumption that all property is community property. Overcome presumption with clear and convincing evidence.

All property acquired during marriage, not by gift, devise, descent, or personal injury claims (not including loss wages)

Question 16

Debts during marriage

Answer 16

presumed to be community debts unless the creditor agreed to look solely at the spouse’s separate property

Question 17

separate property

Answer 17

property acquired before marriage OR property acquired during marriage through gift, devise, descent, or personal injury claims (not including loss wages)

Question 18

gift

Answer 18

transfer of property made voluntarily and gratuitously, without consideration. Proponent bears burden to show it was a gift through clear and convincing evidence

(1) intent to make gift; (2) delivery; and (3) acceptance of property

Question 19

inception of title

Answer 19

the character of an asset is determined at the time the asset is acquired.

Question 20

just and right division of marital estate

Answer 20

is not necessarily an equal, 50/50, division.

Factors:

(1) spouse’s capacities and abilities;
(2) fault;
(3) benefits from the continuation of marriage;
(4) business opportunities;
(5) education levels;
(6) physical conditions;
(7) financial conditions and obligations;
(8) age of spouses;
(9) size of separate estates;
(10) nature of the property; and
(11) fraud against the community

Question 21

community out first

Answer 21

even if clear and convincing evidence shows the use of SP funds, the court will apply the community out first presumption to hold community funds were expended first.

Question 22

reimbursement

Answer 22

in cases involving expenditure of CP on one spouse’s SP, courts will recognize an equitable claim for reimbursement.

Contributions do not change the character of the property or create any ownership interest. Rather, the courts will use equitable principles to decide whether to recognize these reimbursement claims and divide them in a just and right way.

Question 23

Fraud on the Community (Fraud on the Spouse)

Answer 23

a spouse may make reasonable gifts of community property without the other spouse’s consent, but excessive gifts can be set aside as constructive fraud of the other spouse’s community property rights.

Factors:

(1) relationship to donee;
(2) amount of gift in relation to community estate;
(3) circumstances warranting the gift;
(4) whether the gift was from the donor’s sole managing community property; AND
(5) whether the spouse is adequately provided for out of the remaining community estate

Question 24

Remedies for Fraud on the Community

Answer 24

(1) calculate the value by which the CP was depleted as a result of the fraud and calculate the “reconstituted estate”; and (2) divide the value of the reconstituted estate between the parties in a just and right division

Alternatively, count the CP assets expended as part of the donor spouse’s share of the community estate and award the other spouse assets from the CP

Question 25

divorce proceeding jurisdiction

Answer 25

PJ over a nonresident must meet the long arm statute and must be constitutional long arm: assert PJ over nonresidents for purposes of: (1) determining parentage; (2) child custody; and (3) child support. Occurs when nonresident had sexual intercourse in TX and child may have been conceived during that act constitutional: minimum contacts such that assertion of PJ is fair and reasonable. Look at: (1) purposeful contacts; (2) foreseeability of being sued; and (3) whether it is fair to have D sued in forum PJ is not required to terminate a marriage, but it is required for property division and child support/spousal maintenance

Question 26

suit to determine parentage (standing)

Answer 26

may be brought by: (1) mother; (2) child; or (3) representative authorized by law to act for an incapacitated individual after 18, only the child has standing

Question 27

How to adjudicate parentage

Answer 27

court may order genetic testing, unless child has presumed father and conduct of one of the parties estops from denying parentage

Question 28

grandparent standing

Answer 28

may file an original SAPCR as managing conservator if: (1) both parents are dead; (2) both parents or surviving parent consents; or (3) the parent's circumstances significantly impair the physical health or emotional well-being of the child can only file a suit for managing conservatorship

Question 29

Grandparents overcoming parental presumption

Answer 29

showing the parents continuing as managing conservator would significantly impair the children's physical health or emotional development (same standard as standing)

Question 30

Grandparent's request for possession/access

Answer 30

grandparent may request by filing an original suit or a suit for modification. Must allege that denial of possession/access would significantly impair the child's physical health or emotional well-being must show: (1) child's physical health or emotional well-being will be significantly impaired if the GPs are denied access; (2) at least one parent had not had their rights terminated, and the remaining parent intends to deny them possession/access; AND (3) they are the parents of one of the child's parent and that child's parent does not have possession or access to the child, or is dead

Question 31

Protective Order

Answer 31

must show family violence has occurred and is likely to occur in the future. Ex parte temporary PO: if court finds evidence by clear and convincing evidence. Valid for 20 days and can be extended once for an additional 20 days PO: must have service of process and a hearing. Duration is 2 years unless person is subject to previous PO's from same applicant

Question 32

Effect of Protective Order

Answer 32

court has broad powers to craft relief, including: (1) prohibiting contact; (2) preventing person to go to certain locations of the protected person (work, school, etc.); (3) preventing interference with care and custody of children; (4) criminal sanctions Court may require person to perform acts that are necessary and appropriate to prevent or reduce the likelihood of family violence

Question 33

collecting delinquent child support

Answer 33

(1) mandatory withholding (maximum amount is 50% of disposable income); (2) suspension of license (if three months in arrears and failed to make payment under an agreed payment schedule); (3) enforcing child support lien (automatically attaches to non-exempt personal property and non-homestead real property); (4) obtaining a money judgment with interest; (5) freezing assets; (6) seeking a contempt order (after notice and hearing, punishable by confinement up to 6 months and $500 fine)

Question 34

spousal maintenance

Answer 34

if (1) will lack sufficient property to provide for minimum reasonable needs; (2) marriage was longer than 10 years; and (3) lacks the ability to earn sufficient income to meet his minimum reasonable needs Spouse seeking maintenance must exercise diligence in earning sufficient income or developing skills to provide for his/her minimum reasonable needs ends at the death of either spouse, or if the supported spouse remarries can reduce with a material and substantial change in circumstances of supported spouse marriage < 20 years = no more than 5 years of maint. marriage 20-30 years = no more than 7 years of maint. marriage > 30 years = no more than 10 years of maint.

Question 35

suit to enforce division of future property

Answer 35

suit to enforce division of future property not in existence at the time of the original decree must be filed within 2 years of the date the right to the property mature or accrues

Question 36

Finality of Divorce Decree

Answer 36

after the time for appeal has passed, the divorce decree is final. The court may clarify or interpret the decree, but may not alter, modify, or change the division of property

Question 37

CP not divided by court

Answer 37

community property not divided by the court becomes the joint property of the spouses, as tenants in common partition must be brought within 2 years after one ex-spouse unequivocally repudiates the existence of the ownership interest of the other and communicates that repudiation

Question 38

termination of parental rights

Answer 38

court must find by clear and convincing evidence the termination is in the best interest of the child and a statutory reason exists if sexual assault results in pregnancy, court must find termination in best interest of child, the child was born from sexual assault, and the father has been actually convicted of the crime

Question 39

paternity presumptions

Answer 39

(1) child born during marriage; (2) parties married after birth and man voluntarily asserts his paternity; (3) name on birth certificate or other vital record; (4) during first two years of child's life, man live in same household as child and held himself out to be the child's father

Question 40

property acquired with separate funds

Answer 40

if acquired with SP funds, it is that spouse's SP. BUT if both spouses are on the deed, there is a presumption of a gift of a half-interest in that property was made

Question 41

retirement benefits as CP

Answer 41

pension plan - apportionment (some SP, some CP) Contribution Plan (401k) - use tracing and inception of title (SP if began outside marriage)

Question 42

standing to file an original SAPCR

Answer 42

(1) other parent; (2) government agency; (3) person with actual care, control, and possession for 6 months (12 months if foster); and (4) person who is relative within 3d degree of consanguinity if both parents are dead