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53 Cards in this Set
- Front
- Back
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Does Texas recognize common law marriages, or informal marriages?
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Yes
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What factors must be show to establish a common law marriage?
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1. "Agreed to be married"
2. Lived together as husband and wife ("Cohabitation") 3. Represented to others that they were married ("holding-out") |
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What is the no-common law marriage presumption?
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There is a rebuttable presumption that no marriage exists if no proceedings to prove a marriage is commenced within two years following the date of separation.
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What are examples that may support a finding of "holding out to others"?
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A single public act, such as signing a mortgage or a credit application as "husband and wife," may support a finding of common law marriage.
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Is direct evidence of an agreement to be married required?
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No, because the court may infer such an agreement if the other two elements of a common marriage (cohabitation & holding out) are proved
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What is the proper venue for filing a divorce?
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When both parents live in a permissive venue, the first to file for divorce will set the venue, regardless of where the child may live
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What is the durational residency requirement for a divorce in Texas?
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1. One party must be a Texas domiciliary for six months or longer;
2. One party must be a county resident for at least 90 days; (Personal jurisdiction over the nonresident spouse is not required) |
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May a court order both parties in a divorce proceeding to go to marriage counseling sua sponte and over the objections of the parties?
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Yes
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What are the grounds on which a marriage is voidable and may be annulled?
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1. Underage;
2. Marriage under influence of alcohol or narcotics; 3. Permanent impotency; 4. Fraud, duress, force; 5. Mental incompetence; and 6. Concealed divorce within thirty days of marriage |
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If suit to annul the marriage of a child is brought by a parent, guardian of the person, or conservator, when must the suit be brought?
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Within 90 days after the petitioner knew or should have known of the marriage
But, in any event, such suit must be brought before the child's 18th birthday |
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Is avoidance of an underage marriage automatic?
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No, the marriage is voidable at the discretion of the court sitting without a jury
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In exercising its discretion to avoid an underage marriage what does the court consider?
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The court considers all pertinent facts concerning the welfare of the parties, including whether or not the female is pregnant
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May a parent or next friend bring suit to annul the marriage of a child?
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Yes, if a child older than 16 but under 18 married without parental consent or without a court order
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What are the marriage rights of persons under age 18 in TX?
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1. Anyone under 16 can only get married with judicial approval
2. Anyone between the ages of 16 to 18 must have either judicial approval or parent consent |
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When will the court change an individual's name?
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Any adult may petition the district court in the county of his residence for a change of name
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What must the petition for a name change state?
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The petition must state the present name and address of the petitioner, the requested name, and the reason for which a change is desired
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When will the court order a change of name?
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If good cause is shown, the court shall order a change of name as requested if it finds:
1. that the change is in the interest; 2. or the benefit of the petitioner |
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What limitations are imposed upon an ex parte temporary restraining order (TRO)?
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The TRO cannot:
1. Exclude a spouse from occupancy of the residence 2. Prohibit a party from spending funds for reasonable and necessary living expenses; or 3. Prohibit a party from engaging in his or her usual occupation |
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What is the statutory requirement for issuance of a Texas Family Code protective order?
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That family violence has occurred
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What is "Family Violence" under the Family Code?
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Family violence is
1. an act that is intended to result in physical harm, bodily injury, or sexual assault, or 2. a threat that reasonably places the family member in fear of imminent physical harm, bodily injury, or sexual assault |
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What is a TX court required to find in an order to sustain the issuance of a protective order?
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That family violence has occurred and is likely to occur again
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Generally, when does the obligation to pay child support end?
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Terminates upon the child's 18th birthday or upon high school graduation, whichever occurs later
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Other than age and high school graduation, what are the other ways the child support obligation terminates?
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1. Child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law;
2. Death of the child; or (child support continues for an indefinite period if the child is disabled before the child attains age 18) |
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When may a court order that support payments continue beyond age 18 or graduation from high school?
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Where the court finds that the child requires continuous care and supervision because of a mental or physical disability and will not be able to support himself
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When must the order for extended support (past 18 or high school) be enentered?
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Before the disabled child attains age 18
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Can delinquent child support payments be reduced to a money judgment?
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Yes
The judgment may be enforced by any means generally available for the enforcement of judgments for debts |
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What are the three enforcement mechanisms of the Uniform Enforcement of Support Act (URESA)?
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1. Criminal enforcement by extradition
2. Civil enforcement by prosecuting attorney in other state 3. Registration of support order in other state |
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How can a court order providing for support be modified?
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Only by filing a motion in the court of continuing jurisdiction under SAPCR
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When may the court modify the order or decree relating to support?
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If the circumstances of the child or an unaffected party have materially and substantially change since the order or decree was entered
(e.g., one of the parties has greater or lesser income, or the child has greater needs) |
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WWhat are earnings for purpose of mandatory withholding from earnings for child support?
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All compensation paid or payable for personal services, whether dominated as wages, salary, commission, bonus, or otherwise
(includes pension, disability and retirement program, and unemployment benefits) |
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HHow can a pre-September 1985 obligor avoid mandatory withholding?
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If he pays all arrearages before the hearing on the motion to modify
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What happens if the child support obligor dies before the obligation terminates?
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The remaining unpaid balance of the child support obligation becomes payable on the date the obligor dies
(i.e. Acceleration of Child Support) |
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What are some of the procedural aspects of mandatory withholding?
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1. Delivery of order to employer
2. Payment made to court registry, attorney general, child support collection agency, or obligee 3. Employer must comply with order 4. Obligor-employee must give notice of termination of employment |
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Is there any special provision for obligors that are self-employed or is a day-laborer with no permanent employer?
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Yes
The court may require the obligor to give bond or security conditioned on the payment of past due or future conditions |
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How can a child support order be enforced?
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After notice (10 days) and hearing, a court order for child support may be be enforced:
by contempt, punishable by confinement in the county jail for for up to six months, a $500.00 fine or both |
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What is the maximum amount that can be withheld for child support?
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1. 50% of disposable earnings if the obligor parent has a spouse or other dependent children
2. 60% of disposable earnings if the obligor parent has no other dependents |
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Other than payment of money, what can the court order the child support obligor to do?
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1. The court may order the obligor to obtain and maintain a life insurance policy; or
2. An annuity payable to the obligee for the benefit of the child that will satisfy the support obligation under the order in the event of obligor's death |
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Can the court consider the net resources of the child support obligor's new spouse to calculate the obligor's net resources
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No.
The court may not add any portion of the net resources of a new spouse to the new resources of an obligor to calculate the amount of support to be ordered |
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What are the factors the court considers in determining the amount of child support?
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1. The needs of the child
2. The ability of the parents to contribute to the child's support, and; 3. Any financial resources available for the support of the child |
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Must the court reduce the child support obligation when the obligor has signficaantly reduced income?
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Not if that parent is intentionally unemployed or intentionally underemployed
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Is there a limit on the number of years for which retroactive child support could be ordered?
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There is rebuttable presumption that retroactive support not exceed four years
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Child Support Guidelines
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1 child - 20% of Obligor's Net Resources
2 children - 25% of Obligor's Net Resources 3 children - 30% of Obligor's Net Resources 4 children - 35% of Obligor's Net Resources 5 children - 40% of Obligor's Net Resources 6+ children - Not less than the amount for 5 children |
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What is the general rule regarding the child support guidelines?
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The guidelines (percentages) are to be applied to the first $6,000 of net income per month
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What must happen before a petition for adoption can be considered?
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The parent-child relationship as to each living parent must be terminated
However, in the case of a stepparent, only one parent's rights are terminated so long as the biological parent joins the stepparent's petition for adoption |
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How long may spousal maintenance last after divorce?
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Maintenance may not continue more than three years unless a spouse is disabled
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How much spousal maintenance can be awarded?
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The maximum award is the lesser of $2,500 per month or 20% of the obligor spouse's average monthly income
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What is alimony in Texas?
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In Texas, the term "alimony" is used to refer to a contractual agreement between the spouses for the future support of one of the spouses
Court-ordered alimony is not recognized in Texas |
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What is the presumption against maintenance?
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Except in the case of a spouse who suffers from an incapacitating physical or mental disability, it is presumed that maintenance is not warranted
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When does the spousal maintenance terminate?
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Upon the death of either party or if the obligee remarries or cohabitates with another person
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Can spousal maintenance be modified?
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Yes
The award may be modified to a lesser amount (but it cannot be increased) upon a showing that the circumstances have substantially and materially changed |
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What factors are considered in determining the duration and amount of spousal maintenance?
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* Obligee spouse's lack of employment history and skills
* physical and mental condition of spouse seeking support * role played in contributing to family life (homemaker) *obligor spouse's ability to meet his personal needs and child support obligations * time needed by obligeee to acquire sufficient education and training to become employable |
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What is spousal maintenance?
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An award in a divorce suit for periodic payments from the future income of one spouse for the support of the other spouse
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What are the prerequisites for spousal maintenance?
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1. Marriage was 10 years or longer;
2. Spouse seeking maintenance lacks sufficient property to provide for her minimum reasonable needs; and 3. Spouse seeking maintenance is (1) unable to support herself because of an incapacitating disability, or (2) is the custodian of a child who requires substantial care because of a disability which keeps the spouse at home, or (3) lacks earning capacity adequate to provide for her minimum reasonable needs |
