Family Law Outline Flashcards!

Parents and guardians have liberty to direct the _____ and _____ of their children.

Parents and guardians have liberty to direct the upbringing and education of their children.

Texas abortion law provides exceptions for the _____ and _____ of the mother.

Texas abortion law has no exception for _____ or _____.

Texas abortion law provides exceptions for the life and health of the mother.

Texas abortion law in the outline has no exception for rape or incest.

Breach of Promise to Marry: A petitioner can prove a breach-of-promise-to-marry contract with either written evidence signed by _____ or testimony from at least _____ disinterested witnesses.

• Texas has a _____-year statute of limitations for breach of promise to marry.

A petitioner can prove a breach-of-promise-to-marry contract with either written evidence signed by each party or testimony from at least two disinterested witnesses.

• Texas has a 1-year statute of limitations for breach of promise to marry.

Breach of promise to marry:

Damages: 

• Monetary and _____ value of the marriage (_____ damages), as well as the expenses incurred in _____ for the marriage (_____ damages). 

• Damages for mental anguish and humiliation as also recoverable

Defenses: 

1. Plaintiff’s lack of _____ or love for the defendant

2. _____ decision to end the engagement 

Breach of promise to marry:

Damages: 

• Monetary and social value of the marriage (expectation damages), as well as the expenses incurred in preparation for the marriage (reliance damages). 

• Damages for mental anguish and humiliation as also recoverable

Defenses: 

1. Plaintiff’s lack of chasity or love for the defendant

2. Mutual decision to end the engagement 

Gifts Given in Contemplation of Marriage

1. Ask first whether the gift is a gift given in contemplation of marriage

   • If engagement gift, it is a _____ gift, and the condition is _____

   • An argument can be made that the ring/gift was an _____ gift (i.e. birthday/Christmas gift)

     1. Courts consider the _____ of the gift, _____ , and _____ of the broken engagement 

   • Until the condition is met, the recipient only has _____ interest, giver has _____ interest

2. If the ring is an engagement gift/ring, the recipient must fulfill the condition (marriage) to become the _____ owner of the conditional gift

3. Once the condition is fulfilled, the recipient may keep the gift/ring as their personal and separate property in the case of divorce/separation

Gifts Given in Contemplation of Marriage

1. Ask first whether the gift is a gift given in contemplation of marriage

   • If engagement gift, it is a conditional gift, and the condition is marriage

   • An argument can be made that the ring/gift was an unconditional gift (i.e. birthday/Christmas gift)

     1. Courts consider the nature of the gift, circumstances, and cause of the broken engagement 

   • Until the condition is met, the recipient only has possessory interest, giver has ownership interest

2. If the ring is an engagement gift/ring, the recipient must fulfill the condition (marriage) to become the unconditional owner of the conditional gift

3. Once the condition is fulfilled, the recipient may keep the gift/ring as their personal and separate property in the case of divorce/separation

In a majority of states using a no-fault approach to broken engagements, who gets the engagement ring?

Texas follows an _____-fault approach to broken engagements.

The recipient must return the ring regardless of fault.

Texas follows an at-fault approach to broken engagements.

Prenups: In Texas-

• Enforceable prenups: must be (1) in _____ AND (2) _____ by both parties to be enforced.

• Defenses to an enforceable prenup:

  • Signing must be _____ AND

    • Factors demonstrating voluntariness: (cannot be _____ before the wedding!)

  • _____ AND failure to disclose _____ or _____ _____of the other party

    • Unconscionability: _____ unfair to one party, and is judged by conditions at the _____ of signing

      • _____ unconscionability: lack of _____ OR _____ bargaining power

      • _____ unconscionability: whether the provisions of the agreement are _____ in _____

Prenups: In Texas-

• Enforceable prenups: must be (1) in writing AND (2) signed by both parties to be enforced.

• Defenses to an enforceable prenup:

  • Signing must be voluntary OR 

    • Factors demonstrating voluntariness: (cannot be days before the wedding!)

  • Unconscionability AND failure to disclose property or financial obligations of the other party

    • Unconscionability: grossly unfair to one party, and is judged by conditions at the time of signing

      • Procedural unconscionability: lack of understanding OR unequal bargaining power

      • Substantive unconscionability: whether the provisions of the agreement are mutual in scope

Although the right to marry is a fundamental right, the right is subject to restrictions: _____ , _____ , _____ -_____ .

Although the right to marry is a fundamental right, the right is subject to restrictions: incest, bigamy, under-age.

Incest bans are generally constitutional because they are supported by legitimate state interests such as preventing _____ defects and protecting family relations.

Incest bans are generally constitutional because they are supported by legitimate state interests such as preventing genetic defects and protecting family relations.

Bigamy is banned in _____ states, and Texas treats bigamy as a _____.

Bigamy is banned in all states, and Texas treats bigamy as a felony.

Texas does not permit marriage below the age of _____; creates a _____ marriage if married underage and not emancipated.

Texas does not permit marriage below the age of 16; creates a VOID marriage if married underage and not emancipated 

A valid marriage must be entered into _____ and parties MUST have the _____ _____ to consent.

1. Voluntariness: Voluntariness in marriage is often defined as the absence of _____ and _____.

2. _____ that parties have mental capacity to marry unless proven otherwise (low burden)

A valid marriage must be entered into voluntarily and parties MUST have the mental capacity to consent.

1. Voluntariness: Voluntariness in marriage is often defined as the absence of fraud and duress.

2. Presumption that parties have mental capacity to marry unless proven otherwise (low burden)

A valid marriage must be entered into voluntarily, and parties must have the mental capacity to _____ to marriage. There is a presumption that parties have mental capacity to marry unless _____ otherwise.

Marriage must be entered into voluntarily, and parties must have the mental capacity to consent to marriage. There is a presumption that parties have mental capacity to marry unless proven otherwise.

Texas may grant an _____ for in _____ marriage (fraud, duress, or force) if it induced the marriage and the coerced party has not voluntarily _____ with the other after learning of the fraud or being released from force/duress.

• whether the fraud/duress/force _____ the marriage

• continuing _____ = divorce

Texas may grant an annulment for fraud, duress, or force if it induced the marriage and the coerced party has not voluntarily cohabited with the other after learning of the fraud or being released from force/duress.

Immigration fraud = _____ marriages and _____ liability

• Imprisoned for not more than 5 years or fined not more than 250k (or both) 

• _____ spouse waiver: allows _____ immigrant women to apply for permanent legal residence without their abusive citizen spouse’s _____

Immigration fraud = void marriages and criminal liability

• Imprisoned for not more than 5 years or fined not more than 250k (or both) 

• Battered spouse waiver: allows battered immigrant women to apply for permanent legal residence without their abusive citizen spouse’s participation 

All states (save AL) require licensure prior to marriage solemnization. Failure to obtain a marriage license will generally not be fatal to a marriage unless the failure makes the marriage _____ under statute.

All states (save AL) require licensure prior to marriage solemnization. Failure to obtain a marriage license will generally not be fatal to a marriage unless the failure makes the marriage void under statute.

A formal marriage generally requires a _____, although the nature of the ceremony is left to the parties and celebrant.

A formal marriage generally requires a ceremony, although the nature of the ceremony is left to the parties and celebrant.

Proxy marriage: A proxy marriage is where one party is _____ to attend so someone _____ _____ for that party

Texas permits proxy marriage when the absent party is a member of the _____ forces stationed in another country and unable to attend.

Proxy marriage: A proxy marriage is where one party is unable to attend so someone stands in for that party

Texas permits proxy marriage when the absent party is a member of the armed forces stationed in another country and unable to attend.

A common-law marriage is just as valid as a ceremonial/formal marriage in states that recognize it and requires a common-law _____ to end it.

A common-law marriage is just as valid as a ceremonial marriage in states that recognize it and requires a common-law divorce to end it.

Texas recognizes _____-law marriages.

The four elements of a Texas common-law marriage are _____ , _____ agreement to marry, living together, and _____ _____ as married.

• _____ : Understanding that marriage is a legal status + permanent

• _____ agreement to marry NOT future agreement

  • Can be demonstrated by conduct (i.e. purchasing a family home together)

• Living together: must cohabit in the _____ you want to recognize your marriage 

• _____ _____ as married: means community representation/publicly representing other as _____ and _____.

Texas recognizes common-law marriages.

The four elements of a Texas common-law marriage are capacity, present agreement to marry, living together, and holding out as married.

• Capacity: Understanding that marriage is a legal status + permanent

• Present agreement to marry NOT future agreement

  • Can be demonstrated by conduct (i.e. purchasing a family home together)

• Living together: must cohabit in the state you want to recognize your marriage 

• Holding out as married: means community representation/publicly representing other as _____ and _____.

A curative device is a legal doctrine used to _____ a marriage that may have skipped steps necessary for a formal marriage.

• invalid formal/ceremonial marriage → valid _____ _____ marriage (granted the jurisdiction recognize those marriages)

• putative spouse doctrine: protects a person who participated in _____ _____ in a ceremonial marriage while unaware of a reason that made the marriage invalid (_____ or _____)

  • _____ against a plaintiff’s argument that a marriage is invalid

A curative device is a legal doctrine used to cure a marriage that may have skipped steps necessary for a formal marriage.

• invalid formal/ceremonial marriage → valid common law marriage (granted the jurisdiction recognize common law marriages)

• putative spouse doctrine: protects a person who participated in good faith in a ceremonial marriage while unaware of a reason that made the marriage invalid (void or voidable)

  • protects against a plaintiff’s argument that a marriage is invalid

Void/voidable marriage:

• A void marriage treats the couple as if the marriage _____ happened.

• A void marriage can be challenged by a _____ party and even after the death of one party.

• A voidable marriage remains valid until a _____ declares it invalid.

• A voidable marriage can generally be challenged only by the _____.

Void/voidable marriage:

• A void marriage treats the couple as if the marriage never happened.

• A void marriage can be challenged by a third party and even after the death of one party.

• A voidable marriage remains valid until a court declares it invalid.

• A voidable marriage can generally be challenged only by the parties.

Annulment: declares that the marriage _____happened and is generally available for _____marriage or _____marriages found void 

• _____back doctrine: an annulment can be used to reinstate benefits lost on marriage 

• Divorce is _____for valid marriages 

Annulment: declares that the marriage never happened and is generally available for void marriage or voidable marriages found void 

• Relation back doctrine: an annulment can be used to reinstate benefits lost on marriage 

• Divorce is REQUIRED for valid marriages 

There are two property law regimes: (1) _____-_____ property regime and (2) _____property regime.

1. _____-_____property regime: property generally belongs to the spouse who _____ it or whose name is on the _____.

   • duty of support: husbands had a duty to support their wives and children

     • doctrine of _____: states will rarely _____/adjudicate spousal responsibilities of an ongoing marriage, but will evaluate whether the support is _____

       • doctrine of _____: husband/surviving spouse is liable for providing necessaries (i.e. food, clothing, shelter, and medical care)

2. _____ property regime: property acquired during marriage is generally owned by _____ spouses, regardless of who earned or titled it.

There are two property law regimes: (1) common law property regime and (2) community property regime.

1. common-law property regime: property generally belongs to the spouse who acquired it or whose name is on the title.

   • duty of support: husbands had a duty to support their wives and children

     • doctrine of nonintervention: states will rarely intervene/adjudicate spousal responsibilities of an ongoing marriage, but will evaluate whether the support is sufficient

       • doctrine of necessaries: husband/surviving spouse is liable for providing necessaries (i.e. food, clothing, shelter, and medical care)

2. community property regime: property acquired during marriage is generally owned by both spouses, regardless of who earned or titled it.

When determining whether to change a child’s last name, the court evaluates the _____ _____of the child:

1. Is the child able to make an _____ choice in the matter of the name;

2. Is the bond between the father and child _____ at best and if the name is changed, will the bond _____;

3. Does the father _____ the child, manifest a continuing _____ in them, and object in a _____ time;

4. Will changing the name further _____?  

When determining whether to change a child’s last name, the court evaluates the best interests of the child:

1. Is the child able to make an intelligent choice in the matter of the name;

2. Is the bond between the father and child weak at best and if the name is changed, will the bond weaken;

3. Does the father support the child, manifest a continuing interest in them, and object in a reasonable time;

4. Will changing the name further estrangement?  

Under Title VII as amended by the Pregnancy Discrimination Act, discrimination based on _____ is discrimination based on sex.

• includes breastfeeding

Under Title VII as amended by the Pregnancy Discrimination Act, discrimination based on pregnancy is discrimination based on sex.

• includes breastfeeding

The Family and Medical Leave Act (FMLA) provides up to _____ weeks of unpaid leave with a guaranteed right of return.

• limited to named relationships and requires a _____ medical condition.

• serious medical condition: an illness, injury, impairment, or physical or mental condition that requires _____ care or _____ treatment 

The Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave with a guaranteed right of return.

• limited to named relationships and requires a serious medical condition.

• serious medical condition: an illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing treatment 

Tort damages in Texas:

• damages for pain and suffering, physical pain, and disfigurement are generally _____ property.

• lost earnings, including disability insurance and workers' compensation, are generally _____ property.

Tort damages in Texas:

• damages for pain and suffering, physical pain, and disfigurement are generally separate property.

• lost earnings, including disability insurance and workers' compensation, are generally community property.

Criminal conversation (adultery) is _____ recognized as a tort in Texas.

• requires _____ _____

• Defenses = injured spouse’s _____ and the statute of limitations 

Criminal conversation (adultery) is not recognized as a tort in Texas.

• requires sexual intercourse

• Defenses = injured spouse’s consent and the statute of limitations 

Alienation of affection is recognized in only _____ states and is not recognized in Texas.

Alienation of affection:

• _____ marriage before the defendant's interference.

• The defendant's wrongful and malicious acts must be the _____ cause of the loss of love and affection.

Alienation of affection is recognized in only 6 states and is not recognized in Texas.

Alienation of affection:

• in-tact/happy marriage before the defendant's interference.

• The defendant's wrongful and malicious acts must be the proximate cause of the loss of love and affection.

The two marital evidentiary privileges are the adverse spousal testimonial privilege and the marital _____ privilege.

• testimonial privilege: enables spouses to decline to testify adversely to each other in a _____ trial

  • must be married at time of _____

• communications privilege: prevents admission of evidence of private communications between spouses made _____ the marriage

  • Criminal and civil trials

  • must be married at time of _____

The two marital evidentiary privileges are the adverse spousal testimonial privilege and the marital communications privilege.

• testimonial privilege: enables spouses to decline to testify adversely to each other in a criminal trial

  • must be married at time of testimony

• communications privilege: prevents admission of evidence of private communications between spouses made during the marriage

  • Criminal and civil trials

  • must be married at time of communication

Exceptions for marital evidentiary privilege:

• There is _____ parent-child privilege according to the outline.

• _____ participation in _____

• Crimes against a _____ or _____ (important in DV cases)

Exceptions for marital evidentiary privilege:

• There is no parent-child privilege according to the outline.

• Joint participation in crime

• Crimes against a spouse or child (important in DV cases)

The legal definition of intimate partner violence includes physical or sexual harm, threats of such harm, and _____.

The legal definition of intimate partner violence includes physical or sexual harm, threats of such harm, and stalking.

The public-health definition of IPV can include physical injury, psychological abuse, sexual assault, isolation, stalking, intimidation, and _____ coercion.

The public-health definition of IPV can include physical injury, psychological abuse, sexual assault, isolation, stalking, intimidation, and reproductive coercion.

Reproductive coercion can include birth-control tampering, refusing or requiring an abortion, and _____ wearing condoms.

Reproductive coercion can include birth-control tampering, refusing or requiring an abortion, and not wearing condoms.

Civil protection orders are issued by a judge on application of an IPV victim to restrain an abuser from committing _____ acts of IPV.

Civil protection orders are issued by a judge on application of an IPV victim to restrain an abuser from committing additional acts of IPV.

A temporary emergency protection order is usually _____ parte.

A temporary emergency protection order is usually ex parte.

A temporary ex parte protection order generally does not require notice to the _____.

A temporary ex parte protection order generally does not require notice to the abuser.

A permanent protective order requires advance notice and a _____.

A permanent protective order requires advance notice and a hearing.

In Texas, a permanent protective order generally lasts _____ years according to the outline.

In Texas, a permanent protective order generally lasts 2 years according to the outline.

A protective order can restrict the abuser from coming within a certain distance of the petitioner's home, work, or _____.

A protective order can restrict the abuser from coming within a certain distance of the petitioner's home, work, or school.

A protective order can prohibit direct or indirect contact by phone, text, or other _____.

A protective order can prohibit direct or indirect contact by phone, text, or other means.

A protective order may restrict the abuser from possessing or owning _____.

A protective order may restrict the abuser from possessing or owning firearms.

A protective order may grant temporary child custody, child support, and temporary _____ support.

A protective order may grant temporary child custody, child support, and temporary spousal support.

Self-defense requires an imminent threat of force, reasonable fear of death or serious bodily injury, and a _____ response.

Self-defense requires an imminent threat of force, reasonable fear of death or serious bodily injury, and a proportional response.

Under the outline, you generally cannot meet _____ force with deadly force.

Under the outline, you generally cannot meet nondeadly force with deadly force.

Mandatory arrest policies require arrest based on _____ cause of IPV.

Mandatory arrest policies require arrest based on probable cause of IPV.

No-drop policies require prosecutors to advance all IPV cases to _____.

No-drop policies require prosecutors to advance all IPV cases to trial.

Town of Castle Rock v. Gonzales held that a person cannot sue police for their failure to protect the person and family from an _____.

Town of Castle Rock v. Gonzales held that a person cannot sue police for their failure to protect the person and family from an ex-husband.

High-lethality IPV risk factors include prior IPV, especially choking, forced sex, stalking, and _____ use.

High-lethality IPV risk factors include prior IPV, especially choking, forced sex, stalking, and weapon use.

Pending or actual _____ or estrangement is a high-lethality IPV risk factor.

Pending or actual separation or estrangement is a high-lethality IPV risk factor.

Obsessive possessiveness or morbid _____ is a high-lethality IPV risk factor.

Obsessive possessiveness or morbid jealousy is a high-lethality IPV risk factor.

Marriage no longer eliminates the requirement of _____ for sex.

Marriage no longer eliminates the requirement of consent for sex.

Texas removed the marital rape exemption in _____.

Texas removed the marital rape exemption in 1994.

In Texas, an incapacitated victim can be a victim of _____.

In Texas, an incapacitated victim can be a victim of rape.

Drugging a spouse can make the offense _____ sexual assault under the outline.

Drugging a spouse can make the offense aggravated sexual assault under the outline.

People v. Harris recognized that marital rape can be part of a broader pattern of _____ partner violence.

People v. Harris recognized that marital rape can be part of a broader pattern of intimate partner violence.

Threats to kill are considered a _____ lethality danger.

Threats to kill are considered a high lethality danger.

Criminalizing threats requires _____ intent, specifically a recklessness standard.

Elonis v. United States held that criminalizing threats requires subjective intent, specifically a recklessness standard.

Under the outline, recklessness means the defendant knew there was a _____ that the threats would strike fear.

Under the outline, recklessness means the defendant knew there was a risk that the threats would strike fear.

True threats are _____ protected by the First Amendment.

True threats are not protected by the First Amendment.

A true threat must be perceived by a _____ person as a threat.

A true threat must be perceived by a reasonable person as a threat.

Stalking is a pattern of repeated and unwanted attention, harassment, contact, or other conduct directed at a person that would cause a reasonable person to feel _____.

Stalking is a pattern of repeated and unwanted attention, harassment, contact, or other conduct directed at a person that would cause a reasonable person to feel fear.

Stalking is generally not a First Amendment issue because it is _____ rather than speech.

Stalking is generally not a First Amendment issue because it is conduct rather than speech.

There is (1) _____ -_____ divorce and (2) _____ -fault divorce. 

• TEXAS accepts fault grounds _____ no-fault grounds, but instead of insanity the statute says confinement in a mental institution

There is (1) fault-based divorce and (2) no-fault divorce. 

• TEXAS accepts fault grounds and no-fault grounds, but instead of insanity the statute says confinement in a mental institution

Fault-based grounds for divorce: _____ , _____ , _____ , _____ conviction, and _____.

Fault-based grounds for divorce: Adultery, cruelty, desertion, felony conviction, and insanity.

Adultery/Infidelity: _____ + _____ =  creates the _____ that they engaged in actual sex

• _____ : the tendency or personality that would lead to people to engage in adultery

• _____ : opportunity _____ act of sex itself

  • All types of evidence can be used to prove both elements

    • Courts will ask for "convincing proof" (preponderance + bite)

Adultery/Infidelity

Elements/considerations: disposition + opportunity =  inference that they engaged in actual sex

• Disposition: the tendency or personality that would lead to people to engage in adultery

• Opportunity: opportunity NOT act of sex itself

  • All types of evidence can be used to prove both elements

    • Courts will ask for "convincing proof" (preponderance + bite)

Cruelty = _____ of cruel behavior 

• Some states require adverse health effects

  • _____ health is enough, better w/_____ effects

• Statute of limitations issues

  • Continuing tort of DV and the cause of action does not _____ until the last episode of DV

    • In a legal suit, a court may consider entire history of DV 

• Actual DV = cruelty

Cruelty = pattern of cruel behavior 

• Some states require adverse health effects

  • Mental health is enough, better w/physical effects

• Statute of limitations issues

  • Continuing tort of DV and the cause of action does not accrue until the last episode of DV

    • In a legal suit, a court may consider entire history of DV 

• Actual DV = cruelty

Desertion/Abandonment

1. Separation without _____ or _____

• Both may be inferred from circumstances

• “consent” = more conduct than acquiescence

  • But: consent can be removed if the consensual break becomes _____ /_____

• “cause” = cruelty, adultery, etc.

2. Intent to _____ , abandon, or terminate the relationship

3. For a _____ _____ (often one year)

Desertion/Abandonment

1. Separation without consent or cause 

• Both may be inferred from circumstances

• “consent” = more conduct than acquiescence

  • Example: Take a break -> moves apart from each other = consensual break and no intent to abandon

    • But: consent can be removed if the consensual break becomes permanent/indefinite 

• “cause” = cruelty, adultery, etc. 

  • Example: Wife moves to an apartment + husband helps her move = not consent

2. Intent to desert, abandon, or terminate the relationship

3. For a statutory period (often one year)

Defenses negated fault thus blocked a divorce in fault-based states:

1. _____

2. _____

3. _____

4. _____

Defenses negated fault thus blocked a divorce in fault-based states:

1. Recrimination

2. Condonation

3. Collusion

4. Connivance

Recrimination: only an _____ party can procure a divorce

• Meaning: If both parties are _____ of _____ , neither gets a divorce

Recrimination: only an innocent party can procure a divorce

• Meaning: If both parties are guilty of wrongdoing, neither gets a divorce

Condonation: a spouse cannot sue for fault-based divorce on issue that a they have already _____ their spouse for

• Elements: forgiveness must be _____ + the forgiven spouse must _____ their ways 

Condonation: a spouse cannot sue for fault-based divorce on issue that a they have already forgave their spouse for

• Elements: forgiveness must be informed + the forgiven spouse must mend their ways 

Connivance: _____ your spouse to engage in some marital _____ -_____ (often adultery) and then using that as fault grounds for divorce

Connivance: convincing your spouse to engage in some marital wrong-doing (often adultery) and then using that as fault grounds for divorce

Collusion: both partners agree to _____ or _____ evidence of fault in order to secure a divorce

Collusion: both partners agree to create or fabricate evidence of fault in order to secure a divorce

No-fault divorce

Elements/considerations: Living _____ and _____ for a period of time (usually _____ year)

• Courts have a liberal understanding of these requirements, not even requiring a spouse to _____ the marital home -> just separate bedrooms

TEXAS: marriage just needs to be _____ !

No-fault divorce

Elements/considerations: Living separate and apart for a period of time (usually one year)

• Courts have a liberal understanding of these requirements, not even requiring a spouse to leave the marital home -> just separate bedrooms

TEXAS: marriage just needs to be insupportable!

A court may dissolve the marriage (meaning just to divorce) if:

1. The court has jurisdiction over the _____ ; and

   • Lack of personal jurisdiction over the _____ is not a bar to dissolving the marriage.

2. The respondent receives _____ satisfying _____ _____ (an opportunity to be heard)

   • For the divorce itself, the respondent need _____ appear and need not have _____ contacts with the forum. 

   • IMPORTANT: NOTICE ≠ SERVICE OF PROCESS

     
     

A court may dissolve the marriage (meaning just to divorce) if:

1. The court has jurisdiction over the petitioner; and

   • Lack of personal jurisdiction over the respondent is not a bar to dissolving the marriage.

2. The respondent receives notice satisfying Due Process (an opportunity to be heard)

   • For the divorce itself, the respondent need not appear and need not have minimum contacts with the forum. 

A court has subject matter jurisdiction if the petitioner has a _____ to the forum:

• _____ : _____ in the state + intent to remain _____ ; or

  • TX: >_____ months

• Statutory _____ for the required period

  • TX: >_____ days in county

A court has subject matter jurisdiction if the petitioner has a connection to the forum:

• Domicile: presence in the state + intent to remain indefinitely; or

  • TX: >6 months

• Statutory residence for the required period

  • TX: >90 days in county

Under the _____ _____ and _____ clause, a state generally must recognize another state’s divorce decree when the issuing state had jurisdiction.

• exception = _____ attack: challenging a judgment in a different (sister) state by arguing that the original court lacked _____

  • only available for _____ _____ judgments

    • jurisdiction was based only on one party’s _____ and the other party was _____

Under the full faith and credit clause, a state generally must recognize another state’s divorce decree when the issuing state had jurisdiction.

• exception = collateral attack: challenging a judgment in a different (sister) state by arguing that the original court lacked jurisdiction

  • only available for ex parte judgments

    • jurisdiction was based only on one party’s presence and the other party was absent

Regarding service of process, the petitioner cannot _____ trick someone into entering the state solely to serve them.

Regarding service of process, the petitioner cannot fraudulently trick someone into entering the state solely to serve them.

To challenge a forum (under forum non _____ ) even if the court has jurisdiction, a party can argue that the case should be heard somewhere else because the current forum is seriously _____ .

• _____ Appearance: allows a party to appear in court without consenting to personal jurisdiction.

• NOT general appearance

  
  

To challenge a forum (under forum non conveniens) even if the court has jurisdiction, a party can argue that the case should be heard somewhere else because the current forum is seriously inconvenient.

• Special Appearance: allows a party to appear in court without consenting to personal jurisdiction.

• NOT general appearance

Federal courts may _____ issue a divorce decree, alimony judgment, or child-custody order -> but may _____ state-court decisions 

Federal courts may not issue a divorce decree, alimony judgment, or child-custody order -> but may enforce state-court decisions 

There are two theories of property division on divorce

• _____ theory: Property went to whoever's name was on the title

• _____ distribution: Most courts then moved to equitable distribution

There are two theories of property division on divorce

• Title theory: Property went to whoever's name was on the title

• Equitable distribution: Most courts then moved to equitable distribution

Within equitable distribution, there are three approaches:

1. Marital property (Texas = community property) + majority approach

   1. Identify property acquired _____ marriage, that's marital property and can be divided _____ regardless of title

   2. Exclude _____ property (gift, devise, descent), cannot be divided, but can be considered In equitable division

2. Hotchpot

   1. Gathers up all the property owned by the parties regardless of character as _____ or _____

   2. All of the property is subject to equitable division

3. Hybrid

   1. First identify and divide the _____ property

   2. If the result is unjust, look to the _____ property and divide it to achieve equity

      • Unjust = enough for a spouse to _____ on

Within equitable distribution, there are three approaches:

1. Marital property (Texas = community property) + majority approach

   1. Identify property acquired during marriage, that's marital property and can be divided equitably regardless of title

   2. Exclude separate property (gift, devise, descent), cannot be divided, but can be considered In equitable division

2. Hotchpot

   1. Gathers up all the property owned by the parties regardless of character as marital or separate

   2. All of the property is subject to equitable division

3. Hybrid

   1. First identify and divide the marital property

   2. If the result is unjust, look to the separate property and divide it to achieve equity

      • Unjust = enough for a spouse to live on

Vested _____ unvested pension benefits are marital property subject to division on divorce

• For unvested pension benefits: _____ allocated to interest that has accrued on them but entitled the amount initially given 

• Subject to contributions made during (marital property) marriage and before (separate property) marriage

Vested AND unvested pension benefits are marital property subject to division on divorce

• For unvested pension benefits: NOT allocated to interest that has accrued on them but entitled the amount initially given 

• Subject to contributions made during (marital property) marriage and before (separate property) marriage

Investments in a Spouse’s Future Success 

The majority rule is that the court will _____ divide investments in a spouse's future success, except for business _____ .

• But will consider investments for equitable division/support (even Texas)

Investments in a Spouse’s Future Success 

The majority rule is that the court will not divide investments in a spouse's future success, except for business goodwill.

• But will consider for equitable division/support (even Texas)

TEXAS COMMUNITY PROPERTY

• Community property is _____ property acquired _____ marriage (like marital property); _____ does not matter, nor does it matter whose wages were used to purchase the property

• Separate property is property owned by one spouse _____ marriage, or acquired during marriage by _____ , _____ or _____

  • Texas courts have _____ power to separate property, unless they were _____ with community property → to prove comingling = trace out where the money origins to apportion separate property

• BUT: Commingling separate and community funds and unable to separate → _____ property

• If contributions were made to another spouse’s _____ property with _____ funds or community efforts, the other spouse can seek _____

TEXAS COMMUNITY PROPERTY

• Community property is all property acquired during marriage (like marital property); Title does not matter, nor does it matter whose wages were used to purchase the property

• Separate property is property owned by one spouse before marriage, or acquired during marriage by gift, devise or descent

  • Texas courts have NO power to separate property, unless they were comingled with community property → to prove comingling

  • If contributions were made to another spouse’s separate property with community funds or community efforts, the other spouse can seek reimbursement = trace out where the money origins to apportion separate property

• BUT: Commingling separate and community funds and unable to separate, then all is considered community property

Texas’ community property approach:

• Identify the _____ property (property acquired during the marriage) and enter a “_____ and _____ ” division of the estate

• Texas courts have _____ power to separate property, but may _____ it when determining a “_____ and _____ ” division

Texas’ community property approach:

• Identify the community property (property acquired during the marriage) and enter a “just and right” division of the estate

• Texas courts have no power to separate property, but may consider it when determining a “just and right” division

In Texas, couples can change the character of separate and community property:

• _____ : can only keep property separate, since there is no _____ estate prior to marriage

  • Cannot convert things in a prenup community → separate

  • But can keep property separate

• _____ -_____ agreement: can fully recharacterize property as community or separate

  • Must state clearly the recharacterization of property (courts will not assume); written and signed by both parties

• _____ on _____ : can agree to a “just and right” division of property, including recharacterization, and if the judge _____ it is “just and right” then will enter it into divorce decree

  • Extremely common

  • "just and right" because the parties agreed upon it → _____ super unjust

In Texas, couples can change the character of separate and community property:

• Prenup: can only keep property separate, since there is no community estate prior to marriage

  • Cannot convert things in a prenup community → separate

  • But can keep property separate

• Post-marital agreement: can fully recharacterize property as community or separate

  • Must state clearly the recharacterization of property (courts will not assume); written and signed by both parties

• Agreement on divorce: can agree to a “just and right” division of property, including recharacterization, and if the judge agrees it is “just and right” then will enter it into divorce decree

  • Extremely common

  • "just and right" because the parties agreed upon it → UNLESS super unjust

When determining whether to award spousal support, courts will _____ consider fault, unless:

• Marital fault has negatively affected economic status of the parties (_____ _____ ) or 

• _____ fault 

  • _____ with a close friend/family member

  • sexual felony on spouse

  • TX: courts consider pattern of violence on a just and right division 

    • MUST be within the last 2 years and a conviction

When determining whether to award spousal support, courts will not consider fault, unless:

• Marital fault has negatively affected economic status of the parties (economic misconduct) or 

• Egregious fault 

  • Adultery with a close friend/family member

  • TX: courts consider pattern of violence on a just and right division 

    • MUST be within the last 2 years and a conviction

Determining the Amount of Support – Standards 

• Other jurisdictions (Alizzi): actual need for support + the paying spouse’s ability to pay

• TEXAS uses “_____ _____ needs” 

  • Covers essential food, modest housing, utilities, clothing, and basic healthcare

    • Will take no regard to _____ /situations before marriage

    • Once separated -> if spouse is not _____ to earn money or enhance their _____ to earn money (training or school) = no maintenance

  • Does not cover luxury travel, high-end cars, or expensive entertainment

  • Monthly cap: Lesser of $5,000 or 20% of payor's gross monthly income

Determining the Amount of Support – Standards 

• Other jurisdictions (Alizzi): actual need for support + the paying spouse’s ability to pay

• TEXAS uses “minimum reasonable needs” 

  • Covers essential food, modest housing, utilities, clothing, and basic healthcare

    • Will take no regard to lifestyle/situations before marriage

    • Once separated -> if spouse is not seeking to earn money or enhance their ability to earn money (training or school) or else no maintenance

  • Does not cover luxury travel, high-end cars, or expensive entertainment

  • Monthly cap: Lesser of $5,000 or 20% of payor's gross monthly income

TEXAS Spousal Maintenance 

Texas only grants alimony if there is not enough property (_____ and _____ ) in the hands of the needy spouse to meet her minimum reasonable needs AND one of the following requirements:

• Payor spouse was convicted of a crime of _____ _____ within the _____ years prior to divorce filing

  • _____ as a fault defense- demonstration that husband was forgiven

• Needy spouse has a physical or mental _____ that prevents her from earning income sufficient to meet her minimum reasonable needs

• Was married for _____ years and can’t earn enough to meet (you guessed it!) minimum reasonable needs

• Is custodian of a _____ of the marriage with a physical or mental _____ that prevents her from earning enough to meet minimum reasonable needs

TEXAS Spousal Maintenance 

Texas only grants alimony if there is not enough property (separate and community) in the hands of the needy spouse to meet her minimum reasonable needs AND one of the following requirements:

• Payor spouse was convicted of a crime of family violence within the two years prior to divorce filing

  • Condonation as a fault defense- demonstration that husband was forgiven

• Needy spouse has a physical or mental disability that prevents her from earning income sufficient to meet her minimum reasonable needs

• Was married for 10 years and can’t earn enough to meet (you guessed it!) minimum reasonable needs

• Is custodian of a child of the marriage with a physical or mental disability that prevents her from earning enough to meet minimum reasonable needs

Almost all Texas alimony is _____

• Three exceptions that could (but won’t always) lead to permanent alimony

  • Spouse’s physical or mental _____ that prevents her from supporting her minimum reasonable needs

  • Custody of _____ or young child which prevents her. . . .

  • Catch all: “Another _____ impediment to earning. . .

Almost all Texas alimony is temporary

• Three exceptions that could (but won’t always) lead to permanent alimony

  • Spouse’s physical or mental disability that prevents her from supporting her minimum reasonable needs

  • Custody of infant or young child which prevents her. . . .

  • Catch all: “Another compelling impediment to earning. . .

Length of alimony is the shortest length necessary. . . And then depends on grounds for alimony

• Marriage of less than 10 years + family violence = _____ years maximum

• Marriage of 30 years or more = _____ years

• Marriage of 20 years but less than 30 = _____ years

• Marriage of 10 years but less than 20 = _____ years

• Marriage of less than 10 years and no family violence = _____ eligible for alimony

Length of alimony is the shortest length necessary. . . And then depends on grounds for alimony

• Marriage of less than 10 years + family violence = 10 years maximum

• Marriage of 30 years or more = 10 years

• Marriage of 20 years but less than 30 = 7 years

• Marriage of 10 years but less than 20 = 5 years

• Marriage of less than 10 years and no family violence = not eligible for alimony

_____ circumstances may justify modification/termination of support, but property division is final (unless timely appeal)

• Remarriage/_____ of needy spouse as a reason to modify spousal support 

  • To prove _____ , requires more than a one night stand/less serious relationship

  • Looking for whether the relationship is more serious and reduced the financial needs

• Large/substantial change in financial circumstances

• _____ of payor spouse

  • BUT: Debts for child or spousal support _____ dischargeable in bankruptcy

Changed circumstances may justify modification/termination of support, but property division is final (unless timely appeal)

• Remarriage/cohabitation of needy spouse as a reason to modify spousal support 

  • To prove cohabitation, requires more than a one night stand/less serious relationship

  • Looking for whether the relationship is more serious and reduced the financial needs

• Large/substantial change in financial circumstances

• Bankruptcy of payor spouse

  • BUT: Debts for child or spousal support not dischargeable in bankruptcy

Divorce entered December 31, 2018 and on = _____ deduction for the payor and the receiver does _____ have to report it

Divorces before December 31, 2018 = the _____ has to report alimony as income

Divorce entered December 31, 2018 and on = no deduction for the payor and the receiver does not have to report it

Divorces before December 31, 2018 = the receiver has to report alimony as income