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Kay Polk - Attorney at Law
1502 Augusta #390
Houston, Texas 77057
Tel: 713-266-0846
Fax: 713-266-9260

1502 Augusta, Suite 390 • Houston, Texas 77057 • 713-266-0846

Frequently Asked Questions

Houston family law attorney Kay Polk answers

Divorce

Houston Family LawyersQ: What are grounds for divorce in Texas?

A: Texas is a no-fault state where a married person may obtain a divorce without proving his or her spouse is at fault. However, possible fault grounds are cruel treatment, adultery, conviction of a felony, abandonment, living apart for at least three years, and confinement in a mental hospital for at least three years. A disproportionate property settlement may be obtained in some cases when fault is proven.

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Q: What is an uncontested divorce?
A: Sometimes a married couple can agree on terms of divorce and division of marital property, and even agree on child support and visitation. Typically the husband or wife hires an attorney and the attorney prepares the necessary documents to file with the court. After 60 days, the attorney and her client appear before the judge. The attorney will then ask her client a short list of questions to verify the property agreement and child support and visitation agreements contained in the divorce decree.

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Marital property rights and liabilities

Q: What are my property rights?
A: Texas operates under a community property system, where property acquired during the marriage is presumed to be community property. Community property means both spouses have an undivided one-half interest in all the property, including income, acquired during the marriage. Property owned before marriage and property acquired during the marriage by gift, devise, or descent is a spouse’s separate property. Separate property gives the owner exclusive rights of management, is not subject divestiture at time of divorce, and is solely under the testamentary power of the owner.

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Q: How does the court divide the marital property?
A: Texas courts are mandated to divide the community property in a manner that the judge deems just and right. The court cannot divest or divide a spouse’s separate property. As many factors must be considered when a just and right division of the community property is made, the technique for dividing the marital assets can be very complicated. Issues regarding disposition of the homestead, division of retirement benefits, and payment of attorney’s fees, further compound the problem.

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Q: Who will be responsible for the marital liabilities?
A: It is the intent of Texas law that one spouse is not personally liable for the debts of the other spouse, except when the other spouse was acting as an agent for the first spouse or incurring a debt for necessaries. The marriage relationship alone does not create a basis for personal liability. Each spouse’s solely managed community property is liable for that spouse’s own obligations, but it is not liable for the other spouse’s contractual liabilities. Of course both spouses may sign a contract which would make them liable and subject all marital assets to liability. When divorcing couples cannot agree on the division of the assets and liabilities, the family court is charged with the duty to make a just and right division of the marital assets and liabilities. However, the family court cannot modify the contractual obligations between either of the spouses as to the creditor.

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Enforcement of a court order

Q: How can I enforce a property settlement?
A: By filing a lawsuit in family court to enforce it’s original order.

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Q: Will the court award me attorney’s fees for an enforcement lawsuit?
A: The court may award reasonable attorney’s fees as costs to be paid directly to the attorney, who may enforce the order for fees in the attorney’s own name by any means available for the enforcement of a judgment for debt.

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Custody

Q: Who gets custody of the kids?
A: If the parties cannot agree on the possession and access to the children, the family court will decide based upon the best interest of the child. To determine best interest, the family court will consider such factors as:

  • The desires of the child
  • The emotional and physical needs of the child
  • The emotional and physical danger to the child
  • The parental abilities of the individuals seeking custody
  • The programs available to assist the persons seeking custody to promote the best interest of the child
  • The plans for the child by the persons seeking custody
  • The stability of the home
  • Acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
  • Any excuse for the acts or omissions of the parent

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Child support

Q: How is child support calculated?
A: Child support is calculated based upon the non-custodial parent’s net resources. Net resources include all wage and salary and other compensation plus all other income received, less social security taxes, federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction, state income tax, union dues, and expenses for health insurance coverage for the child. Once the net resource is determined, the court bases the amount to be paid from net resources depending upon the number of children involved. For example, if the obligor has one child, the child support is 20% of the obligor’s net resources; for two children, 25%; for three children, 30%; for four children, 35%; for five children, 40%; and for 6 or more children, not less than 40%. The above percentages may be reduced if the obligor provides support for a child in more than one household.

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Modification of child support

Q: Can child support be increased or decreased?
A: The court may modify an order that provides for child support if:

  • The circumstances of the child or a person affected by the original order have materially and substantially changed since the earlier of the date of original order’s rendition or the date of the settlement agreement or
  • It has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20% or $100 from the amount that would be awarded in accordance with the child support guidelines.

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Possession and access to the child

Q: If I do not get custody of my child, what are my visitation rights?
A: The best interest of the child is always the primary consideration of the court in determining issues of possession of and access to the child. There is a refutable presumption that the “standard possession order” provides reasonable minimum possession of a child for a parent who is named as the non-possessory conservator and is in the best interest of the child. The court may render an order for periods of possession of a child that varies from the standard possession order based on the agreement of the parties. In cases where the court finds that it is in the best interest of the child something outside the standard possession order, the court will consider such factors as:

  • The age, developmental status, circumstances, needs, and best interest of the child. The circumstances of the managing conservator and of the parent named as a possessory conservator; and
  • Any other relevant factor.

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Q: How do I enforce possession and access to my child or child support?
A: By filing a lawsuit in family court. A family court may enforce a final order for conservatorship, child support, possession of or access to a child, or other provisions of a final order.

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Q: Are attorney’s fees and court costs recoverable in an enforcement action?
A: If the family court finds a person has failed to comply with the terms of an order for possession and access to a child and/or to make child support payments, the court will award reasonable attorney’s fees and court costs.

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Q: Can child custody be changed from the original order?
A: The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:

  •  The circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of the date of the original order; or the date of the settlement agreement on which the order is based, or
  • The child is at least 12 years old and has filed with the court the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child, or
  • The conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months

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Paternity

Q: How do I prove that someone is the father of my child?
A: A man is presumed to be the father of a child if he is married to the mother and a child is born during the marriage. If the husband and wife become divorced, the former husband is presumed to be the father of the child if the child was born by the 301st day after the date of divorce. If the man married the mother of the child after the child was born and he voluntarily claimed paternity and filed an unchallenged acknowledgement of paternity with the bureau of vital statistics, or he voluntarily signed the child’s birth certificate, he is presumed to be the father of the child. If the man continuously resided in the household in which the child resided for the first two years of the child’s life and he represented to others that the child was his child, he is presumed to the father of the child. Further, a court must order genetic testing if requested by a party to a paternity suit. If an alleged father cannot be found, the court may order genetic testing of relatives if the need for genetic testing outweighs the legitimate interest of the persons sought to be tested.

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Q: How can I prove that I am not the father of the child?
A: The presumption of paternity may only be rebutted by:

  •  Filing a lawsuit and obtaining a court order adjudicating the presumed father to not be the father or
  • Filing a valid denial of paternity together with the filing of a valid acknowledgment of paternity

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Q: Can I recover attorney’s fees and court costs if I prove the identity of my child’s father?
A: Yes.

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Adoptions

Q: What is involved in adopting a child?
A: A child may be adopted if (a) the parent-child relationship as to each living parent has been terminated; (b) the parent whose rights have not been terminated is the spouse of the petitioner and the proceeding is for a step-parent adoption; or (c) the child is at least two years old, one parent’s rights have been terminated, and the person seeking the adoption has been a managing conservator of the child or has had actual care, possession of the child for at least six months (one year if the non-terminated parent does not consent) or is the child’s former stepparent. The court must find that the adoption is in the child’s best interest. The court will appoint an investigator to complete an evaluation after the child is born and living in the prospective adoptive parents’ home. Texas law also requires a criminal history check, and in cases not involving a stepparent, a Health, Social, Education, and Genetic History Report on the child.

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Q: What is a stepparent adoption?
A: A stepparent adoption is when the spouse of a biological parent seeks to become the legal parent of a child.

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Q: What is an adult adoption?
A: An adult adoption is when one adult adopts another adult and all parties support the adoption. The adoption results in a legal parent-child relationship.

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Pre/post marital agreements

Q: What is the difference between a premarital agreement and a post marital agreement?
A: A premarital agreement is a contract between prospective spouses made prior to and in contemplation of marriage. They are often used when one or both prospective parties have accumulated substantial wealth, run a business together, have adult children, wish to waive spousal support and/or retirement benefits, etc. With a premarital agreement, prospective spouses may adjust property rights with regard to property acquired before and during the marriage by means of provisions that define the separate property of each party, waive a spouse’s statutory rights to homestead and exempt property, or provide for the partition, exchange, or transfer of property between the spouses.
A post-marital agreement is a contract between spouses made during marriage. Such agreements serve two main purposes. First, they provide a means whereby existing community property may be converted into the separate property of the spouses, thereby enabling each spouse to manage, control and dispose of the his or her property as he or she chooses. Further, such an agreement may serve to isolate the separate property assets of one spouse from liability for the other spouse’s debts.

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Q: Are marital agreements enforceable?
A: Yes, so long as the party against whom enforcement is requested entered the agreement voluntarily, the agreement was not unconscionable when it was signed and before execution of the agreement, that party was provided a fair and reasonable disclosure of the property and/or financial obligations of the other party.

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