Once an Order is entered in a divorce, the property division is final and cannot be modified. If an order is entered with issues regarding your minor children or post-divorce spousal maintenance under Chapter 8 of the Texas Family Code, your order is subject to modification in the future. If your circumstances have materially and substantially changed since the date the order was entered, whether that’s a child custody order, child support, or spousal support, there are steps you must take and criteria you must meet in order to modify an agreement once it is finalized. Modifications of orders can be done by agreement or through court intervention.
What do I need in order to modify my order?
If you need to modify your order, you need to evaluate your circumstances that were present at the time the order was entered with your circumstances at the time you wish to modify the order. For child related issues, there is a heightened standard within the first year after the order is entered that you must meet if you wish to modify issues regarding conservatorship (i.e. who has the exclusive right to designate the primary residence; geographic restrictions on the residence of the child or in general joint managing conservatorship to sole managing conservatorship). That standard is there has been a material and substantial change to the circumstances of a parent, both parents, or the child and the current situation for the children presents an immediate danger to the physical health or mental stability of the children. After 1 year from the date the order is entered, the standard lowers to has there been a material and substantial change of the circumstances of a parent, both parents or the children. The standard to modify possession and access, child support, medical and dental support for the children revolves around the material and substantial change of the circumstances standard irrespective of the time from when the order was entered. Material and substantial changes in circumstances can include but are not limited to:
- You’ve made a long distance move, either within the state of Texas or outside of it.
- You’ve had a change in your work schedule that affects what hours you are available to parent your child.
- You’ve had a significant increase or decrease in salary.
- You’ve developed a significant health issue that prevents you from caring your child.
- You’ve remarried.
- You’ve lost your health insurance, which means your child lost health insurance.
- Your child has had a shift in their health, education or other needs.
- Acts of abuse, drug dependency, or other circumstances which render one spouse unable to care for the child.
Proving a material change in circumstances in order to change the order, not only do you need a good reason, but you also need evidence to support your desire to modify the order. Evidence can include:
- A written account of the parenting time you’ve had compared to your scheduled time.
- A journal of notes concerning the problems that have occurred as they happened.
- A report showing that law enforcement or the court itself had to enforce the custody orders.
- Documents that show your move or of your new work schedule.
- Witness statements from experts and others in your life who have knowledge of you and your situations.
- Other official accounts such as school, medical, criminal, and work.
- Unofficial records such as photos, emails, social media posts, texts, etc.
Remember, every case is different, evaluated based off of the facts associated and the respective Texas law, and requires specific attention and detail to get the relief you want in a modification suit. Providing evidence to an experienced attorney will only help your matter when presenting to the Court.
If the other party does not agree, the process is more complicated and an experienced attorney to guide you through the process is recommended.
Can you modify spousal maintenance in Texas?
You can, but only to request the amount due per month be lowered, not to request an increase in monthly payments. A payor spouse who proves a significant change in circumstances or other facts under Chapter 8 of the Texas Family Code, can file to reduce spousal support payments.
Do I need a court to decide whether I can modify my orders?
For every modification, the simple answer is yes: the court must approve and sign every modification order. This does not mean the case must be decided by a judge in a contested hearing in all cases. If you have an agreement with the other parent or other party, the court will more than likely adopt your agreement and approve it as an order of the court. If you do not have an agreement and your modification is contested, the court will need to hear your matter and make rulings on the matter. It is the advice of this firm that if you have an agreement to modify terms of your previous order that you hire an attorney and have that agreement placed into order form and signed by a judge. This is the only way your modification is enforceable in the future. A “handshake” agreement is not enforceable by the court and at any time your agreement could be rescinded, leaving you without legal protection.
What happens if my ex-spouse refused to abide by the order?
Whether the order has been modified or not, both spouses must abide by it. Failure to do so can lead to significant penalties, including:
- Wage garnishment
- Contempt of court
- Loss of license (driving, professional, hunting, etc.)
- Reports to credit bureaus
- Jail time
In the end, it’s important to think about your and your family’s future needs when drafting up a family plan to begin with. This will hopefully help you to avoid making any modification to your court orders at all, and save you a lot of time and stress. In the event that you do need to make modifications, the best situation is if you have an agreement with the other parent or party. If you do not have an agreement with the other parent or party, make sure you have your evidence to proof your modification to the Court. Experienced attorneys can help you through this process and it is best to seek informed and experienced counsel for advice and representation. If you need help, contact Grable Grimshaw PLLC at 210.761.5687 or fill out our contact form to schedule an appointment with us at our San Antonio office.