Under the Texas Family Code, a party can modify child support in three situations:  (1) the parties have agreed to modify child support; (2) when the parties meet the three-year modification rule; and (3) when there has been a material and substantial change to justify a modification.   Parties can accomplish child support modifications either through a private attorney (generally much quicker but attorney’s fees are involved) or through the Attorney General (free but the process can take 6-9 months to even get started once a request is made.)

If the parties agree to modify child support and the court finds the modification to be in the best interests of the child, it is quick and easy to get child support modified with an attorney.

The three-year modification rule provides that the court can modify a child support order without a material and substantial change if it has been three years since the prior child support order and the new amount would differ from the prior amount by either 20% or $100 under the current child support guidelines.  Even if the 20% / $100 difference is not met, the Court could still modify child support if it feels it is in the best interest of the child.  If the prior order was based on the agreement of the parties and was not based on the child support guidelines at the time, the Court cannot use the three-year modification rule to modify child support.  In that situation, child support can only be modified by agreement or by proving a material and substantial change.

Finally, the Court can modify the amount of child support if the circumstances of either a parent or the child have materially and substantially changed since the prior order (or since the date of the mediated settlement agreement or collaborative law agreement on which the prior order was based).  The person requesting the modification has the burden of proving a material and substantial change.  If the change was anticipated at the time of the prior order, it does not justify a modification.  The court will look at a variety of factors such as changes in jobs, increases or decreases in pay, changes in financial circumstances, the birth of another child, etc. to determine if a material and substantial change has occurred.   The party requesting the change must show what the conditions were at the time of the order as compared to the conditions at the time modification is sought.

Child Support

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There are certain aspects of a divorce decree that can be modified later and certain aspects that cannot.  Issues regarding the children (conservatorship, possession and access, child support, health insurance, and almost any other issues related to the children) can be addressed in a modification.  To modify, one party needs to file a Petition to Modify Parent-Child Relationship.  There is no waiting period for a modification, so if the parties are in agreement, a modification order can be entered almost immediately after the petition is filed.  If the parties are not in agreement, the case would follow the standard child custody case procedures.

You cannot, however, modify property or debt division from a divorce decree.  For this reason, property and debt division should never be tied to child support or custody issues.  (For example, if one party agrees to take a smaller piece of the pie in the property division in exchange for receiving higher monthly child support, this would be a huge mistake.  The monthly child support amount can always be modified later, but the person who took the smaller piece of the property pie can never go back and reclaim what was rightfully his or hers.)   This is also a very key reason why parties should consult with attorneys before agreeing on property or debt issues in a divorce.  I have seen it time and time again where someone makes a critical mistake with regards to property (usually a house) in a pro se divorce decree.  They have no way of fixing the problem down the road because you cannot modify a decree on that issue.

Divorce

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