Essays Family Law

Net resources of the obligor's spouse
-the sole mgmt community property of spouse (e.g. Titled in other spouse's name

NOTE: if child is already receiving benefits from SSI on behalf of a disabled parent, that can go toward the amount of child support owed (i.e. if parent would have owed $250 under the child support guidelines, but gets $250 from SSI, then no child support ordered)

Presumption it's in the BIC to limit amount to 4 years, which can be rebutted if it is shown that
1) obligor knew or should have known he was the father
2) obligor should have known he sought to avoid paying

1. Must be in the BIC
2. Must be a material and substantial change of circumstances since the last controlling order.

Both parents are on equal footing when first seek custody and court will consider BIC.

Intentional use of abusive physical fore y a party against a child MUST be considered IF there is a conviction or an order of deferred adjudication with regard to the offending conservator for the offense of abuse of a child or family violence.

-desires of child
-child's physical and emotion needs
-parental ability
-stability of home environment
-parent's plan
-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 within the last 2 years
-acts or omissions showing one parent is less fit than the other

If the child is 12 or older, the judge MUST interview the child in private, and MAY interview a younger child. Judge can consider this info.

But child cannot choose out right, nor can a child be put on the stand if a jury trial

-does not require equal periods of possession
-exclusive power to make decisions can be given to one JMC
-court order mlust designate the conservator with the right to determine the child's primary residence (can just be a geographical area)
-either JMC can be order to pay child support

-a child support order based on the guidelines is in the BIC.

-to determine if the child support guidelines are unjust or inappropriate under the circumstances, the court considers the following factors:
-age and needs of the child
-ability of the parents to support the child
-financial resources
-other reason consistent with the BIC.

-Court MUST make a findings required by the Code if child support varies from the guidelines.

Court must state whether application of the guidelines would be unjust or inappropriate and::
1. monthly net resources of the mother
2. monthly net resources of the father
3. percentage the court did apply to net resources
4. specific reasons that the amount of child support ordered by the court varied from the amount computed by the guidelines

Yes, the TX Constitution allows spouse to partition or exchange their CP and to include income, increases, and after-acquired property.

The TX Fam Code grants spouses the right to partition or exchange between themselves all or part of their CP, then existing or to be acquired, as spouses may desire.

NOTE: spouses can also convert SP to CP, but only after marriage (not premarital agreement)

1. it was not signed voluntarily, OR
2. agreement was unconscionable when signed, AND
-prior to signing she was not provided fair disclosure of property and obligations, AND
-she did not waive such disclosure, and she reasonably could not have known of the property and obligations

-atmosphere in which agreement was made
-alternatives, if any, available to the parties at the time of the making of the contract
-the non bargaining ability of one party
-whether the contract is illegal or against public policy
-whether the contact is oppressive or unreasonable
-a party who knowingly enters a a lawful but improvident contract is not entitled to protection by the courts

(there are no common law defense to this, code said it is the exclusive remedy or defense)

Abuse of discretion and requires reversal by an appeallate court. Reversible error.

Not if there is evidence sufficient to support the award.

A spouse, however, does not have a separate and independent claim for fraud on the community.

-age
-physical condition of the parties abilities
-earning power and business opportunities
-education
-need for future support
-size of community estate
-size of each person's SP (can't divide it, but can consider it)
-length of the marriage
-children of the marriage
-child care responsibilities
-benefits the innocent spouse would have received from continuation of the marriage
-fault in the breakup of the marriage
-reimbursement

If other parties realizes CP not partitioned, have 2 years from time of discovery of CP to take court action

1. couple married at least 10 years, unless spouse convicted of family violence within the past 2 years
2. spouse lacks sufficient property, including property distributed to the souse under the code to provide for MINIMUM REASONABLE needs, AND
3. spouse seeking maintenance must either... a) be unable to support herself because of disability, or b) be custodian of a disabled minor or adult child, or
c) lack employment skills adequate to provide for her minimum reasonable needs

-award max is lesser of 20% of gross income, or $2500
-cannot go beyond 3 years unless disability continues past that (court should say that in order)
-award can be downsized, but not go up
-termiantes when ex cohabitates

-Burden is on the party contending SP, and it must be established by clear and convincing evidence.

-ultimately, the finder of fact can judge the credibility of the witenss and can choose to believe one testifying witness over the other.

Can be rebutted by showing:
1. appointment of parent would not be in BIC
2. parent voluntarily relinquishes care, control, and possession of the child to a nonparent for one year or more, AND, appointment of a non parent is BIC.

Only parents and grandparents.
Grandparents can only do so by alleging that denial of possession to the child would significantly impair the child's physical and emotional well-being.

Under supreme court decision in Troxel, it's unlike would allow anyone else to petition the court, where the Court struck down a statute which allowed "any person" to petition for visitation rights because it was "breakthtakingly broad" and an unconstitutional infringement on a parent's fundamental right to make child-rearing decisions.

Yes. A court retains jurisdiction to confirm the amount of child support arrearages and render judgmet for past-due child support arrearages if a motion for enforcement requesting a money judgment is filed not later than 10 years after:
1. the date the child becomes an adult
2. the date on which the child support obligation terminates under the child support order or by operation of law.

1. all sources of cash-flow revenue including earned income (salary wages, overtime) passive income (dividends and interest), and any other income (pensions, SSI, unemployment).

The new spouse's SP nor her sole management CP is liable for child support debt.

1. Husband's sole management CP
2. Wife's sole management CP
3. Joint management CP

A spouse's sole management property consists of spouse's salary and income from spouse's SP. If it is mixed with the other spouse's salary, the mixed property is subject to joint management.

Yes, if earned during the marriage, they are the working spouse's sole management CP. Only possible relief for other spouse is to convince the court that this creates an unreasonable hardship.

There is a presumption it is a gift when made to the natural object of one's bounty. Must show:
1. intent to make a gift
2. delivery of the property
3. acceptance of the property

This is a rebuttable presumption.

Spouses may partition or exchange their CP, and they may partition or exchange future income, increases, and after-acquired property.  This is specifically provided for in the Texas Constitution and the Texas Family Code. 
 

 

Statutory Defenses to Marital Agreements
1-Voluntary - factors according to court decisions - action that is taken intentionally or by the free exercise of one's will.  i.e. duress and undue influence that would cause a party to do something she would not otherwise have done.  Apply facts - up to the finder of fact to determine.
2- Unconscionable (unfair not enough) when signed, AND whether there was no disclosure, waiver of disclosure, or knowledge (of property or financial obligations). Look at all the circumstances of the situation. 
 
There are no common law defenses to prevent enforcement of the agreement.  Since 1993, the Family Code has provided the the statutorily provided remeides and defenses are the exclusive remedies or defenses. 

also called mutation principle.  Property purchased with separate funds is separate property

don't forget this!!!

Must overcome presumption of community property by CLEAR AND CONVINCING evidence!!

The character of an asset (CP, SP) is determined AT THE TIME THE ASSET IS ACQUIRED. Payment of remaining purchase price with community funds does not affect the asset's characterization.  Applies in all cases except employee retirement benefits and stock options

Reimbursement for CP funds expended on one spouse's SP (to reduce debt, or make capital improvements:
Spouse has claim for reimbursement for divorce filed or death occurring AFTER 9/1/09.  
Before that, it is a claim for economic contribution

Reimbursement is NOT allowed for the following
child support, spousal maintenance
Living expense of spouse or child of spouse
contributions to property of nominal value
student loan owed by spouse

Reimbursement amounts:
Measured by the value in the enhancement (though outstanding debt will be subtracted from it).  Court uses EQUITABLE PRINCIPLES.  Upon death, claim for reimbursement is determined at the court's discretion; then half of the existing CP must be ascribed to the decedent.
Upon divorce, reimbursement is determined at court's discretion and a just and right division will be made

No reimbursement for CP funds spend to improve CP.

Fixtures paid for by CP and attached to SP become a part of SP

a husband's salary is his property
title determines ownership
Property in common law state, remains that spouse's separate property when moving to Texas

Property acquired in another state:
If the property would have been community property if acquired in Teas, it is treated the same as community property and is subject to "just and right" property division

Property acquired on credit during the marriage is presumed to be credit of the community

Where H has used SP and put title in W's name, it is a rebuttable presumption that such is a GIFT  to the spouse.  (if gift from parent, and puts title in both H and W, then 1/2 SP for both)

1-If H purchased property as a single person, but title was incorrect and he adversely possesses another property, property remains SP.
2-If H purchased property as single person, but then moved over and lived on more acreage, he does not adversely possess until end of SOL, so if he got married during that period, it will be CP

Inception of title applies to life insurance policies when first premium payment is made

1. ground for termination existed (20 of them listed below), AND
2. termination is in BIC

CLEAR AND CONVINCING!!

1. abandonment
2. abuse
3. neglect
4. endangering the child
5. imprisonment for over 2 years
6. culpable acts toward the child or another child
7. failure to support child for one year
8. use of controlled substance

Before - SP, SMP, JMP (all property but other spouses's SP and SMP

After - The SMP of BOTH spouses, JMP, and SP (anything but the other spouses SP)

Anything but the other spouses SMP and SP (except for contract necessities)

(reduction of principal debt due to economic contribution of CP)

DIVIDED BY

(debt reduction attributal to CP + equity on date of 1st contribution + debt reduction attributable to SP)

CP used to pay for SP

SP used to pay for CP or other SP

NOT CP to pay for CP

-under the guidelines, the max net resources that can be calculated is $7500.

the lesser of $2500 or 20% of other spouse's average monthly gross income

1. agree to be married
2. live together as husband and wife
3. holding themselves out to others as being married

Presumption is that if they are been separated for more than 2 years, the parties did not agree to be married.

1) must first terminate parental rights (clear and convincing)
2) must get consent of 12 year old (unless court determines that waiver of the consent is in the BIC)

PETITION FOR REASONABLE ACCESS

1. parental rights of at least one of the parents has not been terminated, and the parent who is the grandparent's child is....
1. dead
2. incompetent
3. been in jail or prison during the preceding 3 months
4. does not have actual or court ordered access to the child