Summary: Family Law

Read the summary and the most important questions on Family Law

• 1 Family Law Assessment

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• Filing a petition for divorce in Texas: Durational Residency Test

  Under Texas law, a petition for divorce may not be filed unless both of the following requirements are met: 
  

  • (i) one party must have been a domiciliary of Texas for the preceding six-month period, and 
  • (ii) one party must have resided in the county in which suit is filed for the preceding 90-day period. 

  
  If the durational residency test is met, personal jurisdiction over the nonresident is not required.

• Ex Party TROs can be used to block?

  A TRO may be issued ex parte to prevent a variety of harassing actions (of the sort that no reasonable person would think he or she would be allowed to commit): bothersome and vulgar telephone calls, threats of bodily harm, falsifying records, and removing or tampering with property.

• TPO -  predicate basis

  A protective order can be petitioned for in a divorce proceeding, but it can also be a separate cause of action if no divorce is pending. An order can be based on: 
  

  • actions that have resulted in physical harm, or 
  • based on threats that reasonably place a family member in fear of imminent physical harm, sexual assault, or bodily injury.

• Can a girlfriend get a TPO?

  Yes. Protective orders are available to victims who have had a “continuing relationship of a romantic or intimate nature" with an abusive individual even though the parties are not legally related.

• Protective Order - Maximum Duration

  The maximum duration of a protective order generally is two years (with a few exceptions).

• TPOs: Kick-out Order

  A TPO ordering the eviction of a spouse from a family home may be issued only if the applicant appears personally and files a sworn affidavit including:
  

  •  (i) a detailed description of the facts supporting the TPO; 
  • (ii) the victim either resides on the premises or has resided there within 30 days prior to filing the application; 
  • (iii) the person to be evicted has within the 30 days prior committed family violence; and 
  • (iv) there is a clear and present danger that the person to be evicted is likely to commit family violence again against a member of the household.
    

• Factors considered by court in determining who to appoint as managing conservator

  
  

  • The best interest of the child = paramount consideration of the court in determining conservatorship. 
  • The court will look at any relevant factors including the child's preference.
  • Neither parent can be favored/disfavored based on gender or marital status.
    

• Joint Managing Conservators (JMCs)

  The court will appoint JMCs if the appointment is in the best interest of the child. In determining the best interest of the child the court will consider:
  

  •  (i) the physical and emotional needs of the child; 
  • (ii) the ability of the parties to reach shared decisions; 
  • (iii) positive relationships between the parties, including whether both parents participated in child rearing previously; 
  • (iv) geographic proximity of the parties; AND 
  • (v) the preference of the child if 12 years or older
    

• Grandparent seeking to be appointed managing conservator  must show

   Must demonstrate one of the following: 
  

  • (A) the child’s present circumstances would significantly impair his/her physical health or emotional development; 
  • (B) both parents, the surviving parent, or the MC consents; or 
  • (C) both parents are deceased
    

• "Standard Possession Order"

  The standard possession order is a default order that must be incorporated into a divorce decree UNLESS (a) the parties mutually agree to different provisions or (b) the court determines that the standard order is not in the best interest of the child.