Family Law for the Non-Family Specialist

Kelly McClure, Esq.

Dallas, Texas Family Law Board Certified

Family Law IQ Test

Testing your knowledge of family law in Texas.

True or False?

Same-sex marriage and divorce are legal in Texas.

FALSE.

In 2005, Article 1, Section 32 of the Texas Constitution was amended to limit the definition of marriage to the union of one man and one

woman.

But currently, there are conflicting rulings by the Texas Court of Appeals regarding whether same-sex couples legally married

elsewhere can divorce in Texas. The Fifth Court of Appeals overturned a Dallas District Judge’s ruling granting a divorce to two men who were married in Massachusetts. A Petition for Review has been filed with the

Texas Supreme Court.

Same-sex marriage, and thus same-sex divorce, is recognized by six States:

• Connecticut • Iowa• Massachusetts• New Hampshire • New York• Vermont• And Washington, D.C.

True or False?

Texas is a 50/50 property state.

FALSE. The Texas Family Code § 7.001 requires the Court to “order a division of the community estate of the parties in a manner that the Court deems just and right, having due regard for the rights of each party and any children in the marriage.” Equitable distribution means that the division of the property will be fair, which does not necessarily mean half or equal.

The Texas Supreme Court ruled in Murff v. Murff that the trial Court may consider the following factors when dividing the marital estate:

• the spouses’ capacities and abilities,

• benefits which the party not at fault would have derived from continuation of the marriage,

• business opportunities,

• education,

• relative physical conditions,

• relative financial condition and obligations,

• disparity of ages,

• size of separate estates,

• and the nature of the property.

The Court held “that the consideration of such factors by the trial Court is proper in making a “just and right” division of property. Murff v. Murff, 615 S.W.2d, 696 (Tex. 1981).

True or False?

You can get a fast divorce in Texas.

TRUE. There is a 60 day waiting period for divorce in Texas, except in circumstances of family violence in which the 60-day waiting period is not required if the Respondent has received a final conviction or deferred adjudication for an offense involving family violence against the Petitioner in the past two years.

True or False?

Joint custody means you split possession 50/50 and you do not have to pay child

support.

FALSE.

Under the Texas Family Code § 153.005, custody is called “conservatorship.” Conservatorship is used to describe the legal rights and responsibilities of a parent. Joint managing conservatorship is when the rights and duties of a parent are shared by both parties. However, the Judge may make one parent the primary joint managing conservator, who has the right to determine the primary residence of the child. Therefore, even though the parties are named joint managing conservators, this has the effect of giving one parent slightly greater powers.

True or False?

There is a cap on the amount of child support that can by ordered

by the Court.

FALSE.

The Texas Family Code § 154.121 provides for “Child Support Guidelines” in order to determine child support. In most circumstances, the Court will follow the guidelines, but it in some circumstances it may award support above the Child Support Guidelines.

The Texas Family Code § 154.123 explains that the Guidelines provide a starting point, which can be increased or reduced based on statutory factors:

• special needs of the children;• ability of the parents to contribute support;• any financial resources available for support of

the child; or • the amount of possession and access to child.

If there is a deviation from the statutory guidelines,the Court Order must contain a written explanationjustifying the deviation from the guidelines.

States which allow Post-Minority Support

True or False?

The children get to choose with which parent they want to live.

FALSE.

The Texas Family Code § 153.009 allows a parent to request the Judge talk with the child to discuss his or her preference regarding their primary residence. The Court must interview a child 12 years of age or older an may interview a child under 12 years of age. It is ultimately up to the Court to make this decision. The interview with the child is simply evidence to be considered with all the other evidence and the Court is not required to follow the child’s wishes.

True or False?

It is easy to move your child to another state.

FALSE.

In child custody cases, it is the goal of Texas Courts to ensure that children have frequent and regular contact with each parent. This often involves imposing a residency restriction, which restricts a parent from moving with a child outside of the county in which the case is filed or surrounding counties.

True or False?

It is difficult to prove common law marriage in Texas.

FALSE.

In order to have a common law marriage, the Texas Family Code §2.401(a)(2) requires you:

(1) agree to be married and(2) live together in Texas and hold yourself out to others as being married.

These States also recognize common law marriage.

• Alabama• Colorado• Iowa• Kansas• Montana

• Oklahoma• Rhode Island• South Carolina• Utah• Washington, D.C.

True or False?

Property purchased solely in your name is your separate property.

FALSE. Simply purchasing a car, house, or other real property under your name does not mean that property is your separate property. All property acquired during the marriage with community funds is presumed to be community property regardless of who purchased it or what name is on the property title. What determines the character of the property is the source of the funds with which it was purchased.

Texas Family Code § 3.002

Community property consists of the property, other than separate property, acquired by either spouse during the marriage.

True or False?

Unless you have a Pre-Marital agreement, you lose your separate property.

FALSE.

Texas Family Code § 3.001 defines separate property to include:(1) anything owned prior to the marriage, (2) anything inherited or received as a gift during the marriage, and (3) anything recovered for personal injuries sustained during the marriage, except any recovery for loss of earning capacity during the marriage.

True or False?

Alimony is favored by the Courts in Texas and may be permanent.

FALSE.

Unless there is evidence of family violence, the spouse seeking maintenance must have been married to the other spouse for 10 years or longer and lack the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs. Texas Family Code § 8.053.

Amount of Alimony – Texas Family Code § 8.055 states that a Court may not award alimony of more than $5,000 per month or 20% of the paying spouse’s average monthly income, whichever is less.

Duration of Alimony – the duration of the maintenance order will be determined by the length of the marriage.

Texas Family Code § 8.054.

Length of Marriage Duration of Maintenance

Married for 10 Years Maximum of 5 Years

Married for 20 Years Maximum of 7 Years

Married for 30 Years Maximum of 10 Years

Termination of Alimony – Spousal maintenance terminates on the death of either party or remarriage of the asking spouse. Tex. Fam. Code § 8.054(a). It will also terminate if the asking spouse cohabits with a person with whom the asking spouse has a dating or romantic relationship in a permanent place of abode on a continuing bases. Tex. Fam. Code § 8.056(b).

True or False?

Retirement accounts cannot be divided during a divorce.

FALSE.

Retirement benefits are classified as property, and therefore can be subject to a “just and right" division by the Court. Retirement Plans are viewed by Texas Courts as indirect compensation to a spouse, which is actually an income, earned by the spouse during the marriage. Any contributions to a retirement plan made during the marriage will be viewed as community property and subject to division on divorce. Texas Family Code § 7.003.

True or False?

A 16 year-old girl can get an abortion in Texas without a

parent’s consent.

TRUE.

A minor can go before a Judge and receive permission to have an abortion without a parent’s permission. This procedure is called “judicial bypass” and is available in all States that have a parental consent requirement. Texas Family Code § 33.003. There are 15 States in which there is no parental involvement requirement for a girl under 18. Twenty-seven States require permission from at least one parent.

True or False?

You can easily buy and adopt a baby from a third world country and you do not need a

lawyer to do it.

FALSE.

It is increasingly difficult to adopt a baby from a third world country, and the process can be structured, costly, and involve a long waiting period. The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption was held in 1993 to safeguard intercountry adoptions. As of 2011, this Convention had been ratified by 85 countries. The Convention aims to prevent the abduction, sale of, or trafficking of children and works to ensure intercountry adoptions are in the best interest of the children by strictly regulating the adoption process.

In 2000, the United States passed the Intercountry Adoption Act to implement the safeguards developed at the Hague Convention and outline the procedures for intercountry adoptions.

Americans do adopt children from many countries spread across the globe. Currently, most

adoptions to the United States come from these countries:

• China• Columbia• Ethiopia• Guatemala• Haiti• India• Kazakhstan

• Liberia• Philippines• Russia• South Korea• Taiwan• Ukraine• Vietnam

To complete an intercountry adoption abroad and bring a child to the United States, you must fulfill the requirements of three separate government authorities:

– The foreign country in which the child resides;– United States federal immigration law, and – Your state of residence.

Consequently, there are numerous documents required, and this process can be both complex and lengthy. You will need to work on all three sets of requirements at the same time, so it is best to work with an experienced adoption attorney toensure everything is completed properly.

True or False?

You can claim paternity of a child at any point during the marriage of

someone else.

FALSE.

Any man can file a paternity suit, but if there is a man, who is presumed to be the father of the child that is living with the mother during the probable time of conception, the challenger must file the action within four year’s of the child’s birth. Texas Family Code § 160.607. A man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. Texas Family Code § 160.204(a)(1).

Family Law IQ Test Scores

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Kelly McClure, Esq.Family Law Board Certified

(214) 692-8200