Modification

What can be modified?

A Texas divorce decree or order may be modified concerning the parent-child relationship and spousal maintenance.

Return to top

Parent-Child Relationship

Can my ex-spouse and I agree to a modification?

The parties may agree to a modification concerning the conservatorship and possession of the child and child support.  However, that agreement remains unenforceable until it has been approved by a court in a modification proceeding.

Return to top

What are the grounds for modification of a custody order? 

The court may modify a custody order if:

1. The parties agree and the modification is in the best interest of the child;
2. The child is at least 12 years old and expresses to the court during an in-chambers interview the child’s preference of who he or she wants to be the primary conservator, and the modification is in the child’s best interest;
3. The conservator with the exclusive right to designate the child’s primary residence has  voluntarily relinquished primary care and possession of the child for at least six months, and the modification is in the child’s best interest; or
4. The circumstances of a child, conservator, or another party affected by the court order have materially and substantially changed since the date the order was rendered or the date the settlement agreement that the order was based on was signed, and the modification is in the child’s best interest.

Return to top

What is a material and substantial change?

Whether a material and substantial change actually occurred and whether the court will modify an order are based on the facts of each case. Some examples of a material and substantial change include the following:

1. When a conservator: (1) is convicted of or receives deferred adjudication for indecency with a child, sexual assault, or aggravated sexual assault; (2) is convicted of committing two or more acts of sexual abuse against a child under the age of 14; or (3) is convicted of or receives deferred adjudication for an offense involving family violence.
2. A conservator with the right to designate the child’s primary residence violated a court-ordered geographic restriction;
3. A conservator exposes the child to hostility directed at another conservator or seeks to minimize or impede contact between the child and the other conservator;
4. The child’s home environment changes, including (1) the remarriage of a conservator, (2) a new step-parent, (3) frequent moves, (4) new siblings or step-siblings, (5) new sexual partners of a conservator;
5. The child’s age and needs change;
6. Severe conflict occurs between the parents and gets to the point where they can no longer communicate or cooperate in making decisions concerning the child; or
7. A conservator wants to relocate.

Return to top

How is a material and substantial change determined?

The court must consider and compare the evidence of the conditions that existed at the time of entry of the prior order with the conditions that exist at the time of the hearing on the petition to modify.

Return to top

What about military deployment?

The military deployment, mobilization, or temporary duty of a conservator does not by itself constitute a material and substantial change sufficient to justify modifying an existing court order or decree, but a court can render temporary orders when a conservator is ordered to military duty.

Return to top

When can a modification suit be filed?

A suit to modify custody can be filed at any time as long as the earlier custody order is still in effect.

If a suit modifying the designation of the person having the exclusive right to designate the primary residence of the child is filed within one year after the earlier of the date of the rendition of the order or the date of signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the modification suit must sign and attach an affidavit to the pleading that contains, along with supporting facts, at least one of the following allegations:

1. That the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
2. That the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and that the modification is in the best interest of the child; or
3. That the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months, and that the modification is in the best interest of the child.

Return to top

Child Support

When can a child support modification suit be filed?

A child support modification suit can be filed at any time as long as the earlier child support order is still in effect. The pleading can ask the court to modify the child support retroactively to the earlier of the date the petition for modification was served or the date an appearance was made in the suit.

Return to top

What are the grounds to modify a child support order?

A court can modify a child support order if:

1. The parties agree to the modification and the modification is in the best interest of the child;
2. It has been at least three years from the date the order was rendered or last modified and the monthly child support obligation differs by either 20% or $100.00 from the amount that would be awarded under the current child support guidelines. In this event, the court can modify a child support order without either party pleading and proving a material and substantial change. This 3-year rule does not apply when the parties originally agreed to a child support obligation that was different from the amount that would have been awarded under the child support guidelines when the order was rendered. In that case, either the parties must agree to a modified amount or the party seeking the modification must plead and prove a material and substantial change.
3. The circumstances of either the child or a person affected by the order have materially and substantially changed since the earlier of (1) the date the order was rendered or (2) the date the parties signed a mediated or collaborative law agreement on which the order was based.

Return to top

What is a material and substantial change concerning child support?

In the context of child support, a material and substantial change may include the following:

1. The release from incarceration of a parent if that parent’s child support obligation was abated, reduced, or suspended during incarceration;
2. A change in conservatorship if it also involves changing the child’s residence and the level of care provided to the child by the parties;
3. A change in paternity such as when it is determined that the obligor is not the child’s biological father;
4. A substantial change in the child’s needs (clothes, school supplies, extracurricular activities, child care, etc.);
5. An increase or decrease in a parent’s financial ability to support a child;
6. The birth of another child;
7. A change in the cost to exercise possession of and access to a child; or
8. Changes in a parent’s employment, such as longer working hours or substantial travel requirements.

This is not a complete list and other facts may constitute a material and substantial change. Each case is based on its own facts.

Return to top

What about military service?

Military service itself is not a substantial and material change for the purpose of modifying child support. However, a court can render temporary orders when a conservator is ordered to military duty.

Return to top

Spousal Maintenance

When can a spousal maintenance modification suit be filed?

A spousal maintenance modification suit can be filed at any time as long as the earlier spousal maintenance order is still in effect.

Return to top

What are the grounds to modify court-ordered spousal maintenance?

Spousal maintenance awarded under Chapter 8 of the Texas Family Code may be reduced if the court finds there has been a material and substantial change in the circumstances of the party paying the spousal maintenance. This occurs when the paying spouse loses a job, has a reduction in the amount of his or her income, or suffers other circumstances that make him or her unable to provide for his or her minimum reasonable needs. The modification applies only to payments that accrue after the date of filing of the motion to modify. There cannot be a modification seeking an increase in spousal maintenance under Chapter 8.

Return to top

Can contractual spousal maintenance be modified?

If payment of spousal maintenance was contractually agreed to by the parties rather than being court-ordered, then the modification provisions of Chapter 8 do not apply. Modification may only occur if it is allowed according to the terms of the spousal maintenance contract.

Return to top

To learn more about modifying an order, call Kim Pettit at (210) 558-4572 to schedule an appointment to discuss your case. 

Return to top