The Basics of Divorce Decree Modification

When you go through a divorce, the last thing on your mind is the thought of ever having to come back to court in the future. There are many emotions that you are likely to experience in your time completing a divorce in Texas. Not the least of which is the experience of finality and relief when your case comes to an end. For all of you reading this blog post which is currently engaged in a tough divorce case, this should come as a bit of reassurance to you and your family. No matter how bad your case is, the divorce will end at some point. Possibly even sooner than you think.

So much of the case is spent with you and your attorney working to ensure that you never have to come back to court. One time is enough for most people. The idea that a divorce case will only lead to other family law cases in the future may be enough to cause you to never file for divorce in the first place. Better to stay in an unhappy marriage than to relegate yourself to a never-ending cycle of family law litigation. Of course, this is not a prudent long-term decision. Still, in the short term, it would be perfectly reasonable to want to avoid the unpleasantness of a divorce if it can mean that you never get involved in family law litigation at any point.

However, we all know that staying in a bad marriage is not healthy for you or your spouse. Ultimately one of you will bite the bullet, and a divorce will be filed. At that point, you will need to work as hard and as diligently as you can to make sure that your divorce solves problems on a long-term basis and ensures that you and your family will not have to return to court unless necessary. Get it right the first time, play by the rules and then move on with your lives.

After divorce, what happens?

As far as your life after divorce is concerned, you may not have even let yourself think that far ahead after you began your divorce and found yourself ankle-deep in the proceedings. So much of the daily grind of divorce is enough to leave you sapped for energy. Between the commitments of the divorce, your family, and work responsibilities, you only have so many hours in the day to complete the necessary tasks of your life. Although your divorce may feel like it is your entire life, we know that this is not the case. It would be understandable to focus the remaining time during your divorce on things that take your mind off the case and help you live in the present rather than be dragged down by the past.

Then gradually, your case will pick up momentum, and you will find yourself looking at what your life will be like after your divorce. What do you think your family life will look like? How will your relationship with your kids be impacted by the divorce? Will you be able to effectively co-parent with your ex-spouse when you may not have been able to co-parent with them while you were married? These are the type of questions that may come to mind.

The reality of your situation is that you cannot accurately predict how every aspect of your life will shake out after the divorce ends. The best you can probably do is take your circumstances and project based on prior events. For example, if you and your spouse struggled to co-parent during the divorce, you will likely struggle to an extent after the divorce concludes. It will likely take a concerted effort to improve in this regard, as well. You won’t automatically improve when it comes to communication with your co-parent. This will be something that you have to work on diligently.

Your child and your ability to adapt to living life under a possession schedule is also a huge transition that you will have to come face to face with. Gone are the days where you can see your children as often as you like for as long as you would like. Now you have to share time with the kids together with your co-parent. This will take some getting used to. It will also require some degree of co-parenting with your ex-spouse. We can’t seem to escape the whole co-parenting thing, can we?

These are two of the more important considerations to make regarding your post-divorce life. We haven’t even gotten into issues regarding your job, your finances, the possibility of your child’s circumstances changing for any reason, or the possibility that you or your ex-spouse may need to/choose to move. All of these factors could impact how well your final divorce decree ends up suiting you and your family moving forward. That is the real question that you need to be asking yourself as you close out your divorce.

What happens if your final decree of divorce becomes a problem for you?

Ideally, you can ride off into the sunset after your divorce and never return to family court. Of course, there are a ton of factors in play when it comes to how well your life will meld with your family court orders after a case has concluded. It would be impossible to guess every circumstance that could end up impacting you and your family in the future. Not even the most experienced family law attorney can help you gauge the likelihood of change impacting you and your family. All you can do is assess your circumstances as they are and then make educated guesses as to what will work best for you and your family moving forward.

Change is inevitable. You will not be able to avoid change in your life completely, nor will you want to. The more children you have, the more your employment circumstances or those of your ex-spouse are in flux, than the less likely that your divorce decree will suit you equally well five years after your divorce concludes than it does at the moment your divorce is finalized. What can you do if you determine that your court orders need to be changed or updated somehow?

Texas family courts do allow for modifications of court orders. However, not every change in your life requires a modification or will justify one in the eyes of a family court judge. You will come to see that the best method for modifying a court order will be to do so on an unofficial basis directly with your co-parent. Doing so is more flexible than seeing the judge, getting your changes done faster, and building trust between you and your co-parent. Even if the modification you seek wouldn’t pass muster with a family court, it could happen with your co-parent. All you have to do is present your case to them and see what response you get.

Otherwise, you will find yourself in a position where you need to have a court hearing regarding any issues related to changing or modifying your final divorce decree. This is, of course, a legal process that involves filing a lawsuit and having your case heard before a judge. In the remainder of today’s blog post, we will discuss what a formal modification process looks like and examine what you and your family can do to prepare for this type of case.

Do you need to hire an attorney for your modification case?

This is a question that we receive with some regularity. Many people have the instinct not to hire an attorney unless they have to regard a family law case. This is understandable. Attorneys cost money and are generally thought to be not the greatest people in the world to have to deal with consistently. I can’t say that I would blame you for wanting to avoid hiring a lawyer for a potential modification case. Let’s examine whether or not there is a need to do so.

Some of you are reading this blog post asking whether or not you need to hire an attorney for your modification case because you did not do so four-year divorce. Although most people who go through divorce have 10 to higher attorneys, there is no requirement in the Texas family code that a lawyer represent you to get a divorce. As a result, some of you may have filed and obtained a divorce without ever having hired a lawyer.

We need to ask today whether or not the same could be true in a modification case. Generally speaking, a modification case is well suited to you’re hiring a lawyer rather than representing yourself. I would approach a comparison between your divorce and a modification case this way. In a divorce case, there is relatively little that you need to prove as far as evidence is concerned about getting a divorce. In Texas, we have no-fault divorces, which allow people to get a divorce for any or no reason at all. To get divorced in Texas, all you have to do is follow the process and meet the required deadlines. If you do so, then you can get divorced.

In my opinion, this is basically why people can get divorced with relative ease. That’s not to say that the processes and deadlines of a divorce case in Texas are not substantial in that you would not benefit from having an attorney. I mean that when considering all the different circumstances in upper case, it is more simple to file paperwork than to present evidence clearly and concisely and allows your evidence to make it before the judge.

On the other hand, a modification case requires the same diligence as far as deadlines and adhering to processes are concerned and requires more exacting legal standards. For instance, you have to prove that material in a substantial change in circumstances has occurred for a party to the case. That means between you, your ex-spouse, or your children, there must be a material and substantial change that is a curd in your lives to justify the modification request you are making. This is a pretty hefty burden to bear, considering that most family court judges are prone to wanting to maintain a certain degree of consistency and stability in your child’s life. You need to be able to knock adjudges socks off in terms of showing that material or substantial change in circumstances has occurred sufficient to justify the request.

The paperwork and filing documents in a modification request are somewhat more complicated. Unless you can settle your case in mediation, you will more likely end up before a judge and a modification case than you will in a divorce. These additional steps, the additional required paperwork, and the need to present a coherent set of arguments in court all lead me to believe that hiring an attorney is not only advisable but necessary for success in a Texas modification case.

Fortunately for you, the attorneys with the Law Office of Bryan Fagan are experienced in handling many modification cases after divorce. Our experienced staff of family law attorneys is specially equipped to walk with you whether you are attempting to modify a final decree of divorce or need to offer a defense to a modification filed by your ex-spouse. Contacting our office to set up a free-of-charge consultation is easy. Reach out to us to set up a meeting in person, over the phone, or via video.

How likely is your modification case to settle before a trial?

We have already touched on how I believe that modification cases, in general, are less likely to settle than divorces. To determine how likely your modification case could be to settling in mediation before a trial, you would need to look at the circumstances of your case and the exact modification or modifications being requested. In many cases, there is room for a middle ground on the requested modification. Other times, the request made in the modification petition requires a fair bit of change relative to your current circumstances. As a result, modifications may be less likely in those types of scenarios if you want to settle your case.

For example, if you are a father requesting to have something more like split custody with your ex-wife regarding your children compared to what you have now, then this would seem to be a situation where you may be more likely to settle your case before a trial. This is because if you already have a standard possession order in your divorce decree, it does not take much to modify that into allowing you a few more days each month with your child. You and your ex-spouse can be creative in mediation and develop a new possession and Visitation schedule.

On the other hand, if you are requesting to become your child’s primary conservator after being only a possessory conservator for several years, then there is less middle ground in a case like this. If your absolute goal is to have your children move in with you on a full-time basis and also to be able to have your ex-spouse pay you child support rather than the other way around, there is less room for a middle ground here. As a result, the likelihood of your case needing to go to a trial is higher than any other situation we just finished discussing.

With that said, it is highly recommended that you and your attorney consider your goals before filing your modification. It would be best to determine whether or not you even have sufficient grounds to request the modification. If you do decide that you have sufficient grounds to request the modification, you need to determine then whether or not it is likely that a family court judge would believe your requested modification is in the best interests of your child. These are fairly substantial hurdles to get over in a modification case, and you need to be sure that you are positioning yourself well to achieve your goals before actually filing the case.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material presented in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.


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