During a divorce, Texas law has certain rebuttable presumptions found in the Texas Family Code about your property and children that involve everything from child visitation and child support to property division and spousal maintenance. To overcome or disprove a presumption, it is your responsibility to produce evidence to rebut it. Once you offer evidence contradicting the presumption, the presumption disappears and is not treated as evidence.
Presumptions Involving parent-child RElationships
Custody – The parental presumption states it is in the best interest of the child to be with his/her natural parent(s). TFC §153.131. There is no presumption in the Texas Family Code as to who would be the best choice for custody based on marital status or gender of the parent or the child. §153.003. The Texas Family Code further provides the presumption that it is in the child’s best interest for both parents to jointly share parenting duties, rights, and responsibilities by being appointed joint managing conservators. However, if the Court finds a history of family violence involving the parents of a child, this presumption no longer applies. See TFC §153.131.
Visitation – Standard possession consists of visits on the 1st, 3rd, and 5th weekends, every other holiday, 1 evening per week during the school year, and thirty days during the summer. It is a rebuttable presumption that standard possession is in the best interest of children over three. TFC §153.252.
Child Support – Texas law presumes an order of child support conforming to the Texas statutory child support guidelines is in the best interest of the child. TFC § 154.122.
Paternity – Several presumptions exist to allow for external circumstances to indicate a certain man is the father of a child. The most common presumption is that the children born to a man and wife during marriage are presumed to be the children of the husband. If a man dies, divorces, annuls, or invalidates a marriage, he is presumed to be the father of a child born to the mother during the marriage, as long as the child is born before the 301st day of the end of the marriage. A presumed father may rebut this presumption by filing a valid denial of paternity along with a valid acknowledgment of paternity by another person. TFC § 160.204.
In divorces involving children who are conceived through assisted reproduction, a husband is presumed to be the father if he provides sperm to or consents to assisted reproduction by his wife. TFC §160.703.
Presumptions involving property
Community Property – Property possessed by either spouse during the marriage is presumed to be community property. TFC §3.003.
Separate Property – According to Texas Family Code §3.001, a spouse’s separate property consists of: (1) the property owned or claimed by the spouse before marriage; (2) property the spouse acquires by gift, devise, or descent during the marriage; and (3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
Spousal Maintenance – The presumption is that spousal maintenance is not warranted, unless the spouse seeking maintenance will lack sufficient property, including his/her separate property, to provide for the spouse’s minimum reasonable needs at the end of marriage. TFC §8.051.
To learn more about your rights during a divorce, please contact Boudreaux Hunter & Associates at (713) 333-4430 or click here to complete our easy and fast online inquiry form to schedule a consultation with one of our Houston area family law attorneys.