Modify or Change Divorce Decree
When a divorce is finalized, the judge issues a number of orders in addition to the divorce decree dissolving the marriage. Divorce decrees typically cannot be modified, but in specific circumstances, a decree may be modified due to significant changes in circumstances related to child support, child custody, or spousal support. Modifications allow former spouses to make changes to the divorce decree upon any radical life changes. Petitions to modify a divorce decree can be made by filing a motion for modification to the court. Most decrees cannot be modified until one year after the final Order, but there are exceptions to that rule.
Contact the Law Offices of Frank E. Mann P.C. today if you would like to modify any part of your divorce decree. Frank E. Mann is an aggressive, strategic family law attorney in practice since 1984. Call (713) 524-6868 to schedule a free case evaluation at the Law Offices of Frank E. Mann, P.C.
Modifying Spousal Support
In Texas, spouses typically are not granted any form of alimony support aside from child support, but in unique situations, former spouses may be entitled to “maintenance.” Spousal maintenance is awarded when domestic violence occurred within two years of the divorce decree, or upon extreme circumstances when a marriage lasted over ten years, when a spouse is suffering from physical disabilities, if caring for children with disabilities, or the ex-spouse has a lack of earning capacity. Maintenance orders are limited to a certain amount of time depending on the circumstances or a court may rule that the maintenance must continue as long as a disability continues.
However, maintenance orders can be modified by a showing of a material and substantial change in circumstances of either party. This may include the eradication of a disability, the new ability of a former spouse to find employment, or even a change of circumstances of the former spouse paying the maintenance order.
In Texas, child support orders may be modified if (1) the circumstances of the child or parent have materially and substantially changed since the date of the order; or (2) it has been three years since the order was rendered or modified and the monthly amount of child support differs by either 20% or $100 from the amount that would be in accordance with Texas child support guidelines. A court may take into consideration an increased salary by the parent who is paying child support or increased needs of the child. However, a court may not consider any net resources of a new spouse (the child’s step-parent). A change in physical possession from one parent to the other may also be a cause for modification of child support.
When Can Child Custody Be Modified in Texas?
In Texas, child custody is typically referred to in terms of “access” as related to the title of the parent as either managing conservator or possessory conservator. Either parent may modify the divorce decree which provides for the amount of access if the parent is able to prove that modification is in the best interest of the child and:
- the circumstances of the child or parent have materially and substantially changed since the date of the order;
- the child is at least 12 years old and expressed to the court in chambers the name of the parent who is the child’s preference to have the exclusive right to designate the child’s primary residence; or
- the parent with primary custody has voluntarily relinquished the primary care and possession of the child to another person for at least six months (this does not include a period of military deployment).
A parent may modify the order regarding the designation of the parent with primary custody within one year if the parent attaches an affidavit which contains one of the following facts:
- that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
- the parent seeking modification has primary custody of the child and the modification is in the best interest of the child; or
- the parent with primary custody has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child. Texas courts have construed this section to apply in instances where one parent decides to move the child across the country or to a different country against the child’s wishes.
Child custody orders may also be modified due to increased expenses because of a change in residency, or upon conviction of a parent for child abuse or family violence.
Texas Family Code
The Texas Family Code, as noted above, typically allows changes to a divorce decree upon a showing of a material and substantial change. This may be difficult to interpret, but based on prior Texas family law cases, this change typically relates to any unexpected occurrence affecting the former spouses or the child, such as unemployment, debilitating health problems, or a cross-country move.
Are you Eligible for a Divorce Modification?
A judge has already dissolved your marriage, dividing up your assets, assigning spousal and child support, as well as a parenting plan. If you find yourself in this position but are unhappy with the way things turned out, you may be eligible for a divorce modification.
Has your ex-spouse recently received a substantial raise in pay, but is still paying the same child support ordered by the courts? If the circumstances surrounding your divorce decree have changed, such as a significant change in earnings, then you may be in a very good position to have your divorce decree modified.
Have you recently lost your job, or received a substantial pay cut rendering your previous spousal and child support orders impossible to meet? If so, a divorce modification may be in order.
A petition to contest your divorce decree may involve one or many orders declared in your divorce decree. Your window of opportunity to file certain divorce modifications varies by state, as does the magnitude in which decrees can be altered. The most common types of divorce modification include but are not limited to changes of:
- Child Custody Orders
- Child Support Orders
- Visitation Rights
- Drop off and pick up locations
A Petition to Modify must be filed to the Original Divorce Decree, and must show a significant change or difference warranting a modification to the decree. However, in some cases you can highlight circumstances that were not brought to light when the divorce decree was created.
Significant changes to circumstances involving your divorce decree include a significant amount of pay increase or reduction for either party, a substantial increase or decrease in care costs for children or a spouse, or a significant change in living conditions.
Divorce decrees that failed to take a significant factor into consideration may also be eligible for modification, though it is more difficult to have this type of Petition granted. If the judge ignored or was not given significant information that would have changed the divorce decree orders, then you have to show why in your Petition to have the decree modified.
An experienced family attorney with knowledge of how divorce modifications are handled can tell you whether you have sufficient grounds to file a Petition to Modify your divorce decree. If any of the above situations applies to you, you will likely have a good case to present to the judge. However, each case is different and must be reviewed carefully.
File a Petition to Change Your Divorce Decree
Call the Law Offices of Frank E. Mann, P.C. so I can help you modify the terms of your divorce decree. I work with clients closely so that they understand the requirements and process of a modification. I can walk you through the motion process, making sure you understand what is required and what to expect next. To begin filing a motion for child visitation, child support, spousal maintenance, or child custody, call my office at (713) 524-6868 or fill out an online contact request form and we will be in touch.