So much effort, time and thought goes into the creation of a
Final Decree of Divorce. If you have been through a
divorce you know exactly what I am talking about. From the time that your
Original Petition is filed until you or your spouse go before the judge, Decree in hand,
to finish out your case it is a stressful process that requires patience
and a strong will to complete. On top of all this, there is no guarantee
that the results of your divorce will be anything close to what you wanted
to achieve. Strong advocates, like those with the
Law Office of Bryan Fagan, help but even that is no guarantee.
The majority of divorce cases in Texas conclude not with a trial in front
of a judge but in
mediation. Mediation occurs shortly before your trial is scheduled and is essentially
a last ditch effort to attempt to settle your case. You and your attorney
will go to a neutral, third party attorney’s office along with your
spouse and their attorney. The mediator acts like a ping pong ball, bouncing
back between the room where you are and the room where your spouse is
in an attempt to negotiate the issues in your case. A successful mediation
session results in a
Mediated Settlement Agreement (MSA). An unsuccessful session results in you and your spouse taking your
case to the judge.
Regardless of how your divorce concludes, the bottom line is that there
will be final orders to document and that is the purpose of your Final
Decree of Divorce. It encapsulates every order that was either agreed
to or rendered by the judge in your case. It contains the marching orders
that you and your spouse will abide by in regard to your children, your
finances, your marital home, retirement funds, etc. It is extremely specific
and detailed. This is by design. The court does not want there to be any
question as to how you need to perform in order to be in accord with your
Decree and the same rules apply to your spouse.
As time passes, your Divorce Decree may need to be updated
Times change. You get older, your ex-spouse does and more importantly your
children do. Their circumstances, or yours or theirs will change inevitably.
Best case scenario those changes do not require your Divorce Decree to
be changed. In some situations, however, those changes in life require
amending your Divorce Decree.
A Modification of your Divorce Decree can be filed in the same court that
heard your original Divorce. If you believe that the change in circumstances
of someone related to that Decree have changed so substantially as to
merit a modification then you have the ability to do so. This blog post from the
Law Office of Bryan Fagan will detail the methods of doing so as well as tips on how to best ensure
a successful result for yourself and your family.
A Substantial Change in Circumstances are needed to justify a modification
Texas Family Code contains the laws that govern modification cases in our state and you
need to be aware that the law does not favor modifications except in situations
where a substantial change in circumstances has been experienced by one
of the parties to the Divorce or a child. The change in circumstances
has to have been experienced since the time of the signing of the Divorce Decree.
A petition to modify a divorce decree can be filed with your divorce court
as soon as one year after the Decree was signed by the Judge in most cases.
spousal support, child support and child custody orders are modified in Texas. Let’s
walk through each subject in greater detail.
Modifying a Spousal Maintenance Order
Spousal Maintenance in Texas is what is commonly referred to in other states
as “alimony”. In situations where your marriage lasted over
ten years or if
domestic violence occurred in your marriage within two years of your divorce, spousal maintenance
can be ordered. Other situations that merit the award of spousal maintenance
are if you are suffering from a disability that causes you to be unable
to work or if you are caring for a child with disabilities.
If you are able to show a material and substantial change in circumstances-
of either yourself or your ex spouse- you may be able to modify your orders
regarding spousal maintenance. If you are the spouse who is on the hook
for paying spousal maintenance then you may be able to eliminate the order
to pay if you show that your ex-spouse is no longer disabled or if your
ex-spouse is cohabitating with an adult with whom they share a sexual
Modifying a Child Support Order
Child support orders in Texas may be modified if the circumstances of the
child or any party to the Divorce have seen a
material and substantial change since the order was signed or if 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 accord with the
child support guidelines contained in the Texas Family Code.
Has your ex-spouse’s salary increased, allowing him or her to pay
more in support on a monthly basis? Have the needs of one of your children
grown dramatically since the order was rendered, thus justifying a modification?
On the other hand- has your ex spouse allowed your child to live with
you primarily? If so you have the right to request a modification eliminating
your requirement to pay support as a result.
Child Custody Modification
The word “custody” actually does not appear in the Texas Family
Code, but is rather referred to as either “possession” or “access”. You and your ex spouse are either the
managing conservator of your child or the possessory conservator in most
managing conservator determines the primary residence of your child and has the right to receive
child support. The
possessory conservator has a visitation schedule set up for him or her and also has the right
to pay child support.
You or your spouse may modify a Divorce Decree as it relates to possession
or access if the circumstances of your child or either party have materially
and substantially changed since the date your order was signed. If your
child is at least twelve years old a motion can be filed to have the child
confer with the judge in their chambers as to whom he or she wants to
have the right to determine their primary residence.
Finally, whichever parent, you or your ex spouse, who has this right to
determine the child’s primary residence may voluntarily relinquish
the title as primary caregiver to the other parent for a period of at
least six months. If this occurs the parent who gains primary caregiver
status may file a motion to modify the divorce decree in order to name
him or herself as the primary conservator of the child.
Questions on modification cases in Texas? Contact the Law Office of Bryan Fagan
If you find yourself with questions regarding the modification of a Final
Decree of Divorce please do not hesitate to
Law Office of Bryan Fagan today. Our licensed
family law attorneys are available six days a week to answer your questions in a
free of charge consultation.