The most contentious subject in all of child custody law in Texas is child support. There is something emotional about the process of paying money to your ex-spouse. For the paying parent, there is always some doubt about how the money is being spent. Does the child end up seeing the benefit of that money? Or will the money be spent by Mom on purses and other nice things for herself? This a reasonable concern for many of you parents who love your children but don’t exactly trust your co-parent.
Even for you parents who receive child support this is not an easy arrangement to enter. The amount of money you spend on your children each month is likely far and away more than you receive in child support. Next, there is something disconcerting about needing to rely on child support payments from your ex-spouse to help keep your household finances intact. It feels like a divorce is the end of a relationship. The divorce is the beginning of a new relationship that is just as important.
How to handle when circumstances change?
Where does this leave you when, after a few years, circumstances have changed? The amount of child support you pay or receive no longer is appropriate. Are you stuck paying the same amount of child support into perpetuity? Should you expect to receive the same amount of child support month to month and year to year going forward? Or is there a way to change the child support depending on the evolving dynamic of family life?
This is what a modification case is here for. A modification petition allows you to ask the same court that issued your orders to again look at them. Modifications of child support allow you to increase or decrease the amount of child support. So long as two conditions are met. The first condition is that there must have been a material and substantial change in circumstances . Second, the modification must also be in the best interests of your children. Do not cite to a big change in your life and then assume you win the modification.
The Law Office of Bryan Fagan is here to assist you with your modification case
One of the major challenges associated with a modification case is that this case requires a precise touch when drafting documents. The petition drafted in your divorce case is not the same as the petition drafted in a modification case. The subject matter in a modification is more precise. Additional documentation goes with the modification for a judge to even grant your request for a court date.
Many courts require that you attend at least one session of mediation prior to going into court for a hearing. While mediation offers you a great opportunity to settle your case that opportunity requires preparation. Having an experienced attorney is a major advantage when it comes to a modification case. Finding the attorney who is right for you and your family can take time and effort. The right one won’t just fall into your lap.
The attorneys with the Law Office of Bryan Fagan are here to help you. No matter what stage of a modification case you find yourself in our attorneys and staff work every day to assist you. This means that we have the experience and know-how when it comes to providing you with top-notch service. We offer free-of-charge consultations six days a week. Stop in to talk with us in person or schedule a phone call/video consultation to suit you.
A real-life child support modification case- what can it show you about your situation?
The state of Texas appellate courts hear appeals from parents with great frequency who wish to modify the amount of child support they either pay or receive. The decisions of these courts end up as judge-made laws and act as precedents in future modification cases. I think that it is helpful to see how an appeals court in Texas looked at a case in 2005.
Here a father was attempting to reverse a trial court’s denial of his motion to modify the amount of child support ordered for payment. When we talk about child support modifications, it is common to base the “correct” or “appropriate” amount of child support on the guideline levels of child support in the Texas Family Code. When in doubt, families turn to the Family Code as the way to arrive at suitable child support figure.
The father in this case, In the Interest of R.D., A Minor Child, had a $5,000 per month child support obligation. The couple had four children together. Since the time of the divorce, one of the children has “aged out” of child support. This means that he turned eighteen or graduated from high school- whichever occurred later in time. Additionally, one of the children moved in with Dad. This makes the dad the primary conservator of one of the children.
A lawsuit is filed by the father to decrease his child support in a Denton County family court. Dad wants to see to it that his child support obligation is legally decreased. He stopped paying all of his obligations months ago but this would formalize the decrease and make it so nobody would have a question about what the correct amount of child support to pay.
When can a child support order be modified in Texas?
The standard that the Texas appellate court must use when determining whether a modification case should be allowed is if a material and substantial change in circumstances is observed. The court here points out that just because the amount of child support you should be paying is not contained in that order, you are still obligated to pay child support.
Why is this? The guidelines in the Texas Family Code establish that a percentage of the noncustodial parent’s income should be paid monthly for child support purposes. The more a parent makes the more is paid in child support. Likewise, the more children before the court the more is paid in child support. When income goes up the amount of child support should go up, right? Or, if the number of children in the household decreases, as in this situation, the child support obligation should go down automatically.
However, the best interests of the child standard come into play and make it so a court must perform an analysis prior to reducing the child support. Courts across Texas have ruled that a court may consider the child support guidelines to determine when a material or substantial change in circumstances has occurred. What this tells us is that a judge can consider the Texas child support guidelines, the individual circumstances of the case before them as well as the experience of the judge.
The father failed to make his claim that a material and substantial change in circumstances had occurred
In the appellate court case, the father was asking the court to consider reducing the amount of child support he had to pay. Just to recap- one child aged out of the child support system by turning 18 or graduating from high school. Next, one of the children came to live with him on a primary basis. After the divorce there were four children who went into the analysis for child support. Now that number is down to two.
The court argued that Dad did not successfully make an argument to have his child support reduced, however. First, the court points out that in the father’s modification petition he argues that the court must basically follow the Texas child support guidelines first and foremost. Next, he seems to argue that once a material and substantial change is proven a court must change the child support obligation.
This court points to a daughter moving in with the dad as the first point they would like to address. Normally, yes, when a child moves out of one home and into the home of the parent paying child support that would normally constitute the sort of change that justifies a modification. However, in this case, the parties had already agreed to reduce the amount of child support when a child moves out. The total obligation at that point (after one child had aged out) went from $5,000 per month to $4,000 per month.
Look to the specific circumstances of your case
What should this tell us about the situation you find yourself in? To begin with, you need to look at your specific circumstances first and foremost. Admittedly, were you to walk into the Law Office of Bryan Fagan for a free-of-charge consultation and present the facts of this appellate case to our attorney I think most of us would argue that a modification is warranted. Two fewer kids in the household seems like a material and substantial change.
However, the second part of the story is key. The parents in this case had agreed to something in their final decree of divorce that trumps the children no longer residing with the custodial parent. Namely, that the parents had tried to address an issue like this already in their final decree of a divorce. An agreement that the parties came to was incorporated within the final decree of divorce.
The appellate court looked at the totality of the divorce judgment to decide how to apply the law to this case. The specific language used in that document is what matters most. When the language is unambiguous, the court says, the literal language of the decree must be followed. Ambiguous language puts a court in a more difficult position related to the interpretation of the document. Think about what is being included in your final orders and work with an attorney who uses precise language.
Lessons to take away from this case
The attorneys at the Law Office of Bryan Fagan do not want to cite a court case and then leave. Rather, we need to be able to help you learn a lesson from this case. We can walk away from a case like this knowing more about child support modifications and how the situation can turn out when it comes to your specific facts and circumstances.
The dad in this appellate court case was likely surprised to learn that his appeal was denied. We wouldn’t want you to be in that same position. Your gut may be telling you that times have changed in the past few years. You have fewer kids receiving child support and therefore you should not have to pay as much towards that obligation. However, you need to look at the totality of the circumstances when determining how to pursue this case.
Filing a modification petition for child support reduction requires an investigation into two specific areas: the best interests of your children and the final decree of divorce. These two elements determine the extent to which child support will be reduced. Even if you have experienced a child moving in with you and another child aging out of child support that is not the final story. Rather, there are additional circumstances to consider first.
Look at your final orders from the prior court case
Before you file a modification case you need to be familiar with the court orders from your first case. As we discussed a moment ago, the circumstances in this appellate case would ordinarily merit a modification. However, because the parties had already agreed to a separate arrangement for these types of circumstances the court did not approve their modification request.
The agreement of the two parties, perhaps made in mediation, was incorporated within the final decree of divorce. This meant that the agreement became a part of the final decree of divorce in the opinion of the court. Because the language in the final decree of divorce was clear and unambiguous the appellate court had no choice but to follow those orders. That meant a modification could not be granted because the parties had already contracted on how to handle a situation like this.
Have a copy of your final decree of divorce or other child support orders handy. This way you will not wonder what the court orders actually say as far as child support is concerned. Filing a modification case with no chance of success is a waste of time and money. So long as you and your co-parent did not include language like that in your own final orders then a modification would otherwise be allowed.
Final thoughts on child support modifications
That your circumstances will change over the course of many years when it comes to child support is likely. There are many factors in play that could alter the lay of the land when it comes to child support. Changes in income, the ages of your children, the circumstances and health of your children, and your own health are just a few factors that are relevant in this consideration. Being able to assess all of these factors fairly can help you to position yourself for a modification.
Next, assessing the best interest of your children matters. This was not a specific factor listed in this appellate court decision, but it is relevant nonetheless. Even if a court finds that a material and substantial change in circumstances has occurred since the last time you were in court that does not guarantee a modification is possible. First and foremost, the best interest of your children needs consideration. That is taken on a case-by-case basis looking at the lives of your kids specifically.
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Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
