The Texas Family Code does allow for modification of a divorce decree for parents providing child support. Depending on how old children are when their parents divorce, the divorce decree, and its child support stipulations might be in effect for a decade or more. A lot can change in that time. A parent paying child support might lose a job, make less money, or make more money. It doesn’t make sense for a parent to have to pay the same amount throughout that time if it’s not in accordance with what the parent is actually making.
There’s a clause within the Texas Family Code that directly addresses this circumstance. It’s possible, under state law, to modify a divorce decree if:
“It has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines.”
There’s also the possibility to revisit the child support orders if what’s considered a “material and substantial change” takes place. In order to best understand this, here are a couple of examples of instances that can seem puzzling at first glance. Our hope is we can clarify what is a “material and substantial change” based on Texas case law.
Here are some examples to consider:
Military duty
Section 156.105 of the Texas Family Code specifically lays this out, but there’s also case law from 2010 that substantiates it further. That said, the key phrase is “[military duty] does not by itself constitute a material and substantial change of circumstances sufficient to justify a modification of an existing court order.”
The law is not as clear as what kind of military relocation qualifies as material and substantial change in circumstances. If a parent has to move overseas or out-of-state to fulfill that military duty, that could certainly qualify, but that would be up to the court to make that determination.
Wanting to spend more time with a child
There are instances when a parent has determined more time with their child would be beneficial. Even if it’s in the best interest of the child, and courts will use that as a measure for what to do, case law has established that one parent’s desire for more time with a child does not by itself constitute a material and substantial change.
If parents agree between themselves to deviate from what’s in the decree, that will often work fine. However, there’s nothing in the Texas Family Code compelling parenting time to be modified just because one parent wants that change to be made. But, if it has been more than three years, and there’s the aforementioned 20% or $100 difference in what would be awarded, parenting time could be addressed along with the child support adjustment.
Desire to travel with the child
Similarly, if one parent requests certain summer plans and can’t agree with the other parent on those changes, the decree can’t be modified just to accommodate those plans. It’s possible that both parents can come to an agreement, perhaps even with the assistance of lawyers if it comes to that, but that won’t be enough to qualify as a material and substantial change.
Acquittal of a family violence charge
If there’s a restriction that’s been placed on one parent due to family violence concerns, an acquittal on its own is not considered a material and substantial change per a 2016 Texas case.
If you’re seeking modification and your situation falls into one of these categories and you are unclear of what the outcome might be, don’t lose hope regarding the possibility of getting your divorce decree modified. At the Law Office of Lisa A. Vance, we can work with you to attempt to have your decree modified. In an initial consultation, we can determine if your case would benefit from a mediation to resolve the matter, and we can also determine if there are elements of your situation that constitute a material and substantial change that would warrant a modification of your divorce decree.