One of the major issues in almost any divorce case relates to how much time each parent can spend with their children after the divorce is over. Many parents view this as the primary issue of their case and do so with good reason. One apparent is faced with the prospect of having limited time with their children this can be a very difficult realization. Part of the reason why this is the case is that parents are used to having as much time with your children as they would like when living together with their spouse. Now that there is a divorce on the horizon the reality of their situation is that each parent faces limited time with their child moving forward.
A divorce can change the way you think and can certainly impact your perspective. I know that many of you have never been through a divorce before and are wondering what your divorce will look like in particular. One aspect of divorce cases that many people are surprised by is that a divorce can cause you to think and approach situations differently than you would in other circumstances. I think it has something to do with the level of stress that most people feel during divorce that their problem-solving skills are not at their best do I need a divorce case itself
This is why it is important to have an experienced family law attorney by your side to help guide you through your case. The attorney will help you to be able to identify the important issues in your case and help you plan and negotiate to arrive at an outcome that is the best for you and your children. There are so many issues going on simultaneously during a Texas divorce that you cannot be blamed for feeling like you are being pulled in multiple directions at the same time. You may end up looking back at your case in thinking that you would have done something different now than you did during the divorce case itself.
That is one of the trickier aspects of a divorce. Along the way, you may agree to things that you thought that you were comfortable with but the years following your divorce show due to being problematic for you and your family. The reality of a divorce is that you make decisions based on the circumstances as they are at the time of the case and you are not always able to accurately predict the future to determine what your family's future needs will be. The best you can do is approach the divorce case with the information that you have available to you and then make decisions that are for the best based on that information.
When it comes to the issue of parenting time we tend to think in terms of how things are now and how things are likely to be in the future. What I tell our clients is that what is decided in a divorce can usually be changed in the future but to do so may require some work. So, you are better off getting it right the first time and not having any need to come back in an attempt to change the terms of a final decree of divorce. Pencils do have erasers, but it is best to not have to use them if you do not need to.
Modifying a final decree of divorce
The final decree of divorce the end goal of any divorcing spouses. If you were to go through a divorce then the order that you would be seeking to have created is the final decree. The final decree of divorce reflects either the settlement terms that you came to with your spouse in mediation or reflects the orders from the judge in your trial. Your attorney in that of your spouse will work to create the document which all parties and the judge will sign. Once the ink is dried on all your signatures these will be your marching orders for the foreseeable future. It is then up to you and your spouse to police one another on living up to the terms of the order and doing your best to be faithful to it.
I can almost promise you that there will be some aspect of the final decree of divorce in your divorce that you will not necessarily be in love with. This is not me being pessimistic but rather this is new being realistic that your expectations and attitudes towards particular issues will change over time. That's just human nature. If you are fortunate, you will have a divorce decree that allows you to change your perspective on issues but still protect your rights as a parent.
The other end of this discussion that we need to talk about is that the final decree of divorce is a safety net for you and your ex-spouse to fall into if there is an issue in creating more flexible agreements with one another along the way in your post-divorce lives. Keep in mind that your final decree of divorce cannot anticipate every change that needs to be made to a weekend Visitation or in a custody arrangement due to changes in your family. As a result, you and your ex-spouse have the power to be able to make on the fly modifications informally.
these informal modifications do not need to be brought for a judge or law enforcement or anything like that. For instance, if your work schedule has changed and you will be working weekends for the next two months but will have time off during the week then you can speak to your ex-spouse about making temporary modifications to your custody agreement whereby you could take advantage of your time off during the week to spend those days with your children while the kids stay with your ex-spouse during your preset weekend periods of Visitation. This allows everyone to get their time with the kids it doesn't force anyone to make permanent changes to your final decree of divorce.
The key to this whole discussion is that you and your ex-spouse need to be able to communicate about the basic issues of your life together rather than relying upon going to court for every small change that needs to be made. I am not telling you that you and your ex-spouse need to be best friends but the ability to be civil with one another and to workout your problems as a team are crucial. If you cannot arrive at solutions together 2 help one another and manage the process of raising your children then your options are limited as to how flexible you can be in post-divorce Co-parenting.
When you and your ex-spouse are unable to workout issues together or if you encounter a problem with the final decree of divorce that requires more than just a temporary change that is when a formal modification may need to be sought. The modification of your final decree of divorce regarding parenting time or any other issue is a completely new lawsuit. You would file that lawsuit in the same court where your divorce was filed and would give notice to your ex-spouse about the filing of the case just as you would any other legal matter. Let's take some time now to go through what a modification case looks like and then we can get into the issue of modifying an order regarding parenting time specifically.
Modifying a family court order
A modification is a separate lawsuit from the divorce but builds on the circumstances and conclusions of the divorce case. There is a specific legal standard that needs to be met, however, for the modification case to be granted by a judge. Specifically, a material and substantial change in circumstances must have curd in your life, your ex-spouse's life, or in the life of your child to have a requested modification be granted by a court. Absent a material and substantial change you would technically not have grounds to modify your final decree of divorce.
What does this mean exactly? The first thing that I would mention to you is that you do not necessarily have grounds to modify a final decree of divorce there is some aspect of the order that you no longer like. For example, if you don't like having to pay $1000 per month in child support to your ex-spouse you cannot merely file a modification request to have that number reduced down to $500. Rather, you must determine that a change in your circumstances or that of your ex-spouse has a curd to justify your requested modification.
Using the above child support example, you could present to the court that it has been four years since your divorce and in that time your income has consistently been half of what it was as calculated at the time of your divorce. This means that the calculation regarding child support at that time is no longer accurate based on the significant change in your income over the past four years. As a result, you may need to have that number reduced to meet your current circumstances.
On the other hand, your child may have developed a learning disability over the preceding four years. And now requires consistent tutoring during the school week as well as other needs. Due to this substantial change in circumstances, your ex-spouse may file a modification request with the court to have your child support obligation increased to help meet the burdens placed on the family budget due to your child's learning disability. Again, the modification request would not have been filed based solely on a desire for more child support by your ex-spouse but rather by the material and substantial change in your child's circumstances.
Were your case to go forward to a trial the judge would consider the evidence submitted by both you and your ex-spouse as to why or why not their requested modifications should go through. As with any issue that relates to children in Texas the modification would need to be in the best interest of your child above and beyond any benefit or detriment it posed to you or your ex-spouse respectively. Finally, the judge would need to believe that the evidence submitted makes these substantial and material change in circumstances requirement.
I will note that, just like in a divorce case, a settlement in your modification case is certainly possible. What I tell clients at the beginning of a modification case is that the case can be wrapped up rather quickly compared to a divorce if you and your ex-spouse are willing to work together and meet in the middle any perspective changes that are being requested. You may find that your circumstances allow for a settlement easier than other people may. All of this depends on the facts available in your case and your willingness and ability to negotiate things through with your ex-spouse.
Modifications regarding parenting time in Texas
In your divorce case, you may have agreed to a situation wherein your spouse was able to when the right to decide where your child would reside primarily while you were handed a standard possession order where you would be able to be with your children on the 1st, 3rd and 5th weekends of each month along with alternating Holidays with your spouse. This arrangement or some slight variation of it is the most common parenting time and Visitation schedule for divorcing spouses. The question for you is what happens if the parenting time orders no longer work for you due to a substantial change in circumstances in the time since your divorce?
This is why you may find yourself in a position where you are wondering whether or not filing a modification is a right thing to do. Suppose that your teenage children have come to you and asked you to file this modification case because they want to live with you primarily. Or, what if your ex-spouse develops some sort of drug or alcohol abuse issue and as shown herself unable to care for your children? Then you would likewise be interested in modifying your divorce decree for you to become the primary conservator of your children.
Along the way, you and your ex-spouse may be able to work together to create I now come where you and she can share time with your children more evenly but do not need to go all the way to a trial to have that issue sorted out with the judge. Again, this is where being able to work together with your ex-spouse comes in handy. If you and your ex-spouse or at odds with one another and are unwilling to talk through the issues of your case then it is more likely than not that a trial would have to be held to have your modification case dealt with.
Overall, the important thing that I want you to take away from this blog post is that you cannot ask a judge to grant you more time with your children unless you have a solid basis for asking beyond merely wanting to see her kids more. Although this is a Noble desire in and of itself it does not necessarily meet the definition of material and substantial change sufficient to have your final decree of divorce modified. You should prepare and have your reasons for modification ready to go and be prepared to defend them in court.
Finally, you need to have an experienced family law attorney by your side during a modification case. As I mentioned earlier, you Must be able to determine whether or not you meet the material and substantial change guidelines ahead of time before filing your case. If a judge does not think your circumstances rise to that level then your case may be tossed out before you even get to say a word to the judge or to present evidence. You do not want to waste your time and money by filing a case that is without basis or has no chance of success. For that reason, I always recommend to people that they have a licensed and experienced family law attorney by their side to help guide them and make recommendations based on their specific circumstances. An experienced family law attorney is worth their weight in gold as far as a short term investment for potentially fruitful long-term gain.
Questions about the material presented 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 our law practice and about your specific circumstances as they pertain to the world of Texas family law.