Whether you believe a mistake was made in your original divorce case or a party to your divorce is dealing with a substantial change in circumstances years later, you may be able to take steps to amend divorce decree orders. The Texas Family Code sets forth strict guidelines regarding the modification of divorce decree provisions, like spousal support, child support and child custody, so it’s best to hire an experienced family lawyer to help navigate the process.
When can a divorce agreement be overturned?
Once your divorce has been finalized, meaning a judge has signed off on your divorce decree, you have 30 days to file an appeal to have your case heard by a higher court. Whether you believe important evidence was overlooked by the judge or simply disagree with the court’s findings, you do have a right to appeal to amend divorce decree directives.
In order to successfully appeal and overturn your divorce agreement, you will need to prove that an error occurred in your original divorce case. Trying to appeal divorce decree orders within 30 days is one option, but once that time has lapsed, there are other steps you can take if circumstances warrant changing divorce decree provisions in the future.
When can you modify a divorce agreement?
If you want to amend divorce decree provisions down the road, you can file a motion to modify divorce decree under certain circumstances. In general, the state of Texas allows its citizens three paths to change divorce decree orders. The three paths include:
No. 1: Mutual agreement of the parties.
If you and your ex divorced amicably or have been able to sort out your differences and get along in the years following a divorce, the state of Texas typically won’t stand in your way if you want to change the terms and conditions of your divorce settlement. After you and your ex decide on terms, your attorney can file a motion to modify judgment of your divorce decree by mutual agreement.
No. 2: Changes to Texas child support guidelines.
For parents who follow a standard visitation schedule, Texas calculates child support based on the number of minor children the parties have and the net monthly resources of the payor. The state also places a cap on net resources that can be tapped for child support, which is adjusted every six years based on inflation.
As of 2019, net monthly resources were capped at $9,200 for child support in Texas. A parent who is receiving child support based on the previous cap of $8,550 could file a motion to modify child support in line with the new cap—under two conditions:
- At least three years have passed since the child support order was enacted or last modified; and
- The change in payment amounts to a difference of more than 20% or $100/month.
No. 3: Material and substantial change in circumstances involving a party to the divorce or SAPCR.
Parties to the divorce or suit affecting the parent-child relationship (SAPCR) include ex-spouses, parents who never married but share children and any minor children the parties share. The most common types of modifications that the state of Texas allows include modifications of spousal maintenance and suits affecting the parent-child relationship to modify child support and child custody. Let’s take a closer look at each.
Modifications to spousal maintenance
Unlike other states, Texas caps the amount of spousal maintenance a party could be ordered to pay at $5,000/month or 20% of the payor’s gross income, whichever is less. A spouse can request maintenance if he or she can prove they lack the ability to financially meet their “minimum reasonable needs” and provided the couple has been married for 10 years or more—unless family violence has occurred.
The court will consider education, employment fields of the spouses, ages and health of the spouses, whether one parent is paying child support, the needs of the children, family violence and other considerations when determining the amount and duration of spousal maintenance.
If you’re paying spousal maintenance, you may be able to file a motion to modify divorce decree maintenance requirements if a change in financial circumstances (unemployment, substantial reduction in income, etc.) or disability has made it difficult for you to continue meeting your maintenance obligations.
Conversely, if a party receiving spousal support undergoes a material and substantial change in circumstances, their ex may request a modification to reduce or terminate spousal support. For example, if the person receiving spousal maintenance becomes gainfully employed, wins the lottery, remarries or cohabitates with a new love interest, those circumstances may warrant a modification of spousal maintenance.
Modifications to child support
If your circumstances have materially and substantially changed since your most recent child support orders went into effect, you may be able to request to amend divorce decree orders regarding child support. Material and substantial changes in circumstances that may qualify for a modification in child support include:
- The child now lives with a different parent.
- The income of the non-custodial parent has changed.
- The non-custodial parent is now legally responsible for additional children.
- Changes to medical and dental coverage have occurred.
- Expenses to care for a child with a disability or medical condition have changed.
You may also be eligible for a child support modification if you meet the following conditions required by the state of Texas:
- The child support amount was established or most recently modified at least three years ago.
- The current monthly child support payment differs by a minimum of 20% or $100 from the amount required under Texas’ most recent child support guidelines.
Modifications to child custody and visitation
The state of Texas refers to child custody as possession and access. As a co-parent with visitation rights, you act either as a managing conservator or possessory conservator. The managing conservator has the right to choose the child’s primary place of residence and may also be awarded child support. The possessory conservator receives access to or visitation with their child and may be ordered to pay child support.
Over time, the circumstances of parents and their children can change significantly, which may warrant a modification of possession and visitation. A parent may need to relocate for work or they may have dramatically improved their financial situation and are better able to care for their child. In other cases, a parent who was awarded primary conservatorship may now be abusing drugs or alcohol, putting their child’s physical and emotional wellbeing at risk.
Ultimately a judge will base his or her decision to modify child custody and visitation orders based on the best interests of the child.
As described in the Texas Family Code, a judge may agree to amend divorce decree and change primary conservatorship under temporary orders provided the change is in the best interest of the child and one of the three following scenarios exists:
- A child 12 years of age or older has expressed to the judge in chambers which parent’s home he or she would rather live in as their primary residence. (The judge may or may not agree to change conservatorship based on the child’s wishes.)
- The child is at risk of physical and/or emotional harm in the home of a parent who has possession or visitation rights.
- The parent with the exclusive right to determine the child’s primary residence voluntarily relinquishes the primary care and possession of the child for at least six months.
When CAN’T you modify divorce decree provisions?
Once your divorce decree is finalized it can be very difficult, if not impossible, to modify provisions that pertain to the property. For example, if you and your ex agreed to each keep your separate retirement accounts, you can’t come back after the fact and ask for a bigger piece of your ex’s retirement pie because you found out it was worth a lot more than yours.
We do however see many cases where one party was able to hide certain assets, only for our client to learn about the asset after the divorce decree was finalized. That wouldn’t be a case where you would seek to amend a divorce decree, though. Instead, it would be a case where we would fight to help our client recoup their fair share of a previously undivided asset. In addition, if the client has solid evidence that their ex deliberately hid those assets, we may also pursue charges of perjury in family court.
Have questions regarding how to modify a divorce decree?
If you believe you have grounds for a modification of spousal maintenance, child support or child custody, an experienced Fort Worth divorce lawyer at the Sisemore Law Firm would be happy to speak with you. We can also answer questions regarding the division of property associated with your divorce.
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