When a couple gets divorced in Texas, the divorce decree reflects the circumstances at the time the marriage ends and the divorce agreement the two parties have reached (or what was ordered by the court). The terms of the divorce may also factor in what the parties believe will happen in the future.
However, circumstances do not always unfold as anticipated at the time of a divorce. One or both ex-spouses may need to seek a modification of the divorce decree, whether it is for financial reasons or because their personal circumstances have changed. It is not always easy to persuade a court to grant the modification. The ex-spouses may need to negotiate the potential modification on their own to avoid the need for family court litigation.
Texas Law on Divorce Decree Modifications
According to Texas law:
“A court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or possession of and access to a child”
Like every issue regarding child custody and support, the legal standard for determining whether a modification is necessary or appropriate as it relates to a child is the best interests of the child. The “best interests standard”—which would not apply to spousal support because that does not involve children—is a flexible one that allows the court a considerable amount of discretion in deciding the matter. However, for child support issues, the court would stick to the application of Texas child support guidelines, so long as they apply to the case.
The Legal Standard for a Divorce Decree Modification
There are several reasons why someone may need to seek a modification of a divorce decree. Regardless of the reason, the legal standard for a modification is still the same. In Texas, in order to receive a modification of a divorce decree, the party must show a material and substantial change in circumstances of one or both of the parties or a child. Not every change in circumstances is sufficient to require a modification to an agreement or court order. The burden of proof is on the ex-spouse who is seeking the modification to show that the circumstances support it.
Modifying a Child Support Order
Child support is one of the most common reasons for a divorce decree modification. One parent may be making more money than they were at the time that the original order was entered, or they may have lost their job. Changes in financial circumstances could allow for a modification of child support. However, not every annual raise or change in income would be enough to mandate a modification.
The substantial change in circumstances standard would generally apply when there is a material change in income. For example, if the paying parent loses their job, they may seek a modification to pay less in child support due to their reduced income. The same thing applies when either parent has gotten a substantial raise, because the amount of child support is calculated based on the income of both parents. If the paying parent earns significant additional income, they may be required to pay more child support.
One parent may seek a modification to the child support order if a minor child’s expenses have changed. For example, the child may have special needs and require additional medical treatment or special education. In that case, both parents may need to share in the expense.
Modifications to a Child Custody Order
Either parent may request a modification to a child custody order. The circumstances may materially and substantially change in a way that could require an alteration. In general, custody issues involve:
- Which parent (or both) is able to make important decisions, such as those regarding healthcare, education, and general parenting issues
- Which parent has physical custody of the child and the amount of access that the other parent has (if the parents do not share physical custody)
Texas law presumes that both parents should share in the decision-making. However, the parents may not be able to get along and fully cooperate to determine the best interests of the child. In that case, the court could award managing conservatorship to one parent.
In other cases, the children’s schedule may change, or one parent may need to relocate. In that event, access to the children may also need to change to reflect the different circumstances. Nonetheless, Texas law presumes that a non-custodial parent should have a certain level of access to the children, and any new custody arrangement could change the blocks of time that one parent has. However, the exact dates and details of the child custody arrangement could be subject to modification.
There are some times when a parent could seek to modify the court order to seek a change in custody of the children entirely. Again, the best interests of the children standard would apply. If a child is age 12 or over, they may be able to have input into the court’s decision. Alternatively, one parent may believe that the other is unfit or a danger to the children, and they may seek to reduce or eliminate that other parent’s access.
Modifications to the Spousal Support Order
Another area in which ex-spouses may request a modification is spousal support. The financial situation of either of the parties may have changed since the divorce. The paying spouse may have experienced a drop in their income, such that they would not be able to afford the amount set by the court. The receiving spouse may have found a way to earn more money, or perhaps they remarried. In that case, they may no longer be eligible to receive spousal support.
Some Facts May Not Call for a Modification
There are some aspects of a divorce that may not be subject to modification. For example, if the divorce decree divided the property between the two spouses, neither of them can come back afterward and seek a modification. Certain orders that have already been entered are final and unchangeable.
In addition, not every change should lead to a divorce decree modification. The substantial change in circumstances standard is not always easy to meet. The burden of proof would be on the parent who is seeking the modification to show that the change in circumstances is substantial.
Considerations for a Divorce Decree Modification
The parties may be better off trying to talk amongst themselves to negotiate a solution before going to family court. Although an ex-spouse always has the right to try to reopen the terms of their divorce in court, it could be easier and more efficient to do it as part of a negotiated agreement. However, a parent would predictably take issue with being asked to pay more child support or have their time with their children cut. In some cases, you would need to go to court to have a judge order the changes to the divorce decree.
For any modification of a court order, you are always better off when you put everything in writing. You should never trust an oral agreement, especially when there is no evidence of it. You can negotiate a modification, which would be sent to the court for the judge to enter an order making the modification official. It is critical that you do everything by the book or else you could lose the protection of a modified divorce decree.
Contact an Experienced Family Law Attorney Today
If you are facing any issues regarding a modification of the court order entered after your divorce, you should contact an experienced family law attorney. Trying to handle these matters on your own may not lead to the most favorable result, both for you and your children. Contact the experienced divorce lawyers at Terry & Roberts today to discuss your matter.