Child support orders can be modified under the Texas Family Code whenever there has been a material and substantial change in the circumstances of you, your child’s other parent or your child themselves. The key thing to remember when a modification is requested, the judge will need to determine that the modification is in the best interests of your child. If you can establish these two elements then you will be successful in your modification attempt. Today’s blog post from the Law Office of Bryan Fagan will center around this subject.
What is a material and substantial change in the context of a child support modification?
For a judge to make a determination that a material and substantial change has occurred in regard to your case, he or she will review the child support guidelines as set forth in the Texas Family Code. Additionally, there are certain factors that the Code specifically states cannot be considered when it comes to a modification of child support. An increase in the needs of the child, a history of one parent making voluntary child support payments in the past, your lifestyle or standard of living and the income of your ex-spouse’s new husband or wife. These are the factors that a judge cannot take into consideration when determining whether a material and substantial change in circumstances has occurred.
Just as there are factors that a judge may not consider, there are other factors that the child support guidelines state a judge must consider when ordering a child support figure. The net resources of the parties to your case as well as the abilities of you and your ex-spouse to earn incomes are the two primary considerations that a judge will give in regard to material and substantial changes. In any situation, a judge may go against what the guidelines have to say as far as child support if applying them would be unfair or inappropriate.
Let’s go through the law to see what you actually need to prove to get your increase
All of the theories and ideas about child support are fine to learn about, but what you actually need to know is how to win the modification case. If your goal is to be awarded above guidelines levels of child support, then we want to help you achieve that goal. Fortunately, we can look to prior court cases to lay out the way this can happen.
The Family Code allows a judge to modify a child support order if you are able to show him or her that the circumstances of you, your opposing party or your child have materially and substantially changed since the earlier of: 1) the date that your child support order was rendered 2) or the date that the settlement agreement on which the order is based was signed. Additionally, a court can order a modification of child support if at least three years have elapsed since the order was rendered or modified and the support figure differs by either 20% or $100 from the amount that is appropriate currently.
Best interests of your child as the most important factor to a judge
As I touched on in the beginning of today’s blog post, a judge cannot make a determination that a child support modification is appropriate unless doing so is in the best interests of your child. Everything that we have discussed in today’s blog post is rendered moot unless a modification is found to be something that is in the best interests of your child.
The appropriateness and the best interests of your child is determined by the circumstances of you, your opposing party and your child at the time your order was previously decided and now in the present time that your modification is being sought. When making a decision, the court is to be guided by the child support guidelines contained in the Texas Family Code. However, it may and should consider other sources of information as well.
Will your ex-spouse’s financial status be examined as the requestor of the modification?
This is a question that I receive with some frequency, that is, if you are requesting an above guidelines level of child support in a modification case will your ex-spouse’s financial status be examined by a court as well? The short answer to that question is yes. Not only will your ex-spouse’s current wages or salary be considered but other sources of income or resources will also be looked at.
In calculating net resources for the purpose of determining child support, a court can look to all wages and salary income as well as any other income that your ex-spouse receives in order to determine child support. It is up to you and your attorney in order to show that there has been a sufficient change in the circumstances of your ex-spouse to justify the modification that you are requesting.
Above-guidelines child support cases are few and far between
What we cannot really do all that well is look to prior decisions from judges in order to give you a lot of firm information about how to prepare for your case. There are very few appellate court cases that you can use for guidance, unfortunately. The bottom line is that it is difficult to make a prediction on the success of your case as a result.
Let’s consider an example that will hopefully illustrate a lot of what we have been talking about. Suppose that you and your ex-spouse got a divorce in 2015. Your husband was a doctor who earned roughly one million dollars a year annually and had been earning that level of income for years prior to your divorce.
On the other hand, you had your own successful career in oil and gas for many years before you and your ex-husband started having children. At that time, you stopped working in order to stay at home and raise your family. Before your divorced was made final, you went back to work and started working on a part time basis making about half of what your husband was earning on a yearly basis.
The end result of the divorce from a property perspective was that you received a lot of community property in the divorce as well as contractual alimony of $4,000 per month for five years. In relation to your minor children, you were named as the primary conservator of your children and your husband was awarded visitation rights, as well. Your husband agreed to pay child support of $7,500 per month.
Now let’s flash forward to 2019. Your ex-husband has filed a motion to reduce amount of child support that he is obligated to pay. His reasoning for having filed the modification was that he had remarried and has two children with his new spouse. Additionally, he has told the judge in his petition to modify that you are now working full time and are earning a salary that is nearly the same as his.
Your contention is that you agreed to the divorce settlement based in large part on the terms relating to child support. Furthermore, your contention is that your ex-husband can afford to pay the support with ease. What’s more, you think that your ex-husband is so keen to reduce his child support obligation because he and his new wife are planning on building a vacation home and want some extra cash to help them do so.
How could a family court judge in Texas react to these circumstances?
If the above scenario matched up with your individual circumstances how would the judge likely react? I suppose that we would be best served to look to what circumstances that have developed since your divorce would be the most likely to sway a judge to increase the amount of child support that is to be paid.
First of all, a judge would need to think about the two new children that your ex-husband has with his new wife. I would think at that very least that your ex-spouse would be able to win a slight reduction (5%) for having two new children he is responsible for that were not yet born at the time of your divorce.
The amount of child support that your ex-spouse is currently paying can also be looked at as being already very high. Keep in mind that $7,500 per month works out to $90,000 annually. At first glance this may seem like a great deal of money- and it is. However, this works out to less than 10% of his annual income- though perhaps not his take home pay.
Furthermore, your own “need” for $90,000 worth of annual child support payments would likely be looked to in light of your own higher than average income. Do your children have any special needs? Are they involved in extra-curriculars that necessitate extra child support be paid?
On the other hand, there may be reasons why you would be able to maintain the current amount of child support that is being paid to you. First of all, there may not be sufficient change in the circumstances of either party or your child. This is the most straightforward reason why the reduction request may be denied. For instance, the judge may find that although your ex-spouse had a couple of other kids with a new wife the added financial burden may be less than what would be required to reduce his child support obligation to you. After all, he makes a million dollars a year.
The $7,500 a month child support burden may not be seen by the judge as being a sufficient burden based on his circumstances in order to justify the reduction that he is requesting. An argument that I would imagine is less compelling but may nonetheless be important is the fact that you negotiated for your divorce orders based in large part on the child support. This is not a specific argument that I have ever tried or heard tried in relation to a child support modification case but I could see it carrying some weight with judges.
Overall, I think modification cases are easier to defend than to initiate. I say this knowing nothing about your specific circumstances or case. The material and substantial change requirement is a high hurdle to get over for many parties, just to get in front of the judge. You will have to attach an affidavit to your modification petition that goes over the circumstances that your modification is based on. A judge could find that you do not meet the threshold to even having a hearing and toss your case out before it even gets a chance to be heard.
Whatever kind of situation you find yourself in, it is best to have an attorney representing you in a child support modification of any kind. The stakes are high when it comes to your children’s well being as well as your own financial status. Do not assume that you can handle things on your own. Talk to an experienced family law attorney about how you and your family could benefit from skilled representation.
Questions about child support modifications in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we wrote about in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you in a free of charge consultation. These consultations are a great opportunity to meet with an experienced attorney and receive feedback about your specific circumstances.
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