Episode 145

It sounds like a basic concept, but it seems like a lot of attorneys and judges don’t fully understand it: material and substantial change, the gatekeeper standard for any modification case.

In this episode, Holly is joined by Emily Doron, a senior attorney at the Draper Law Firm, to unpack what the standard actually requires, where it comes from, and why the same set of facts can get a modification granted in one court and denied in another. The Texas Family Code never defines material and substantial change, which means attorneys are left piecing it together from case law — and, in practice, from the individual judge sitting on the bench.

The conversation walks through the challenges in presenting material and substantial changes in court including what constitutes material and substantial changes, when it is and when it isn’t in the best interests of the client to pursue them in court, how the specific court and judge might impact the outcome more than the facts, and how to protect your client’s appeal when the finding goes against what those facts say.

This is a conversation from which every family attorney can take away information that they can use, and the every new and young family lawyer will definitely want to hear!

In This Episode, You’ll Discover:

• What material and substantial change actually is

• The two-part test clients need to understand

• The one-year modification trap

• Whether a promotion counts as a material and substantial change

• How to actually prove it in court

• Why “I don’t like this order” isn’t a legal argument

Mentioned in this episode:

• Texas Family Law
• Podcast
• Material Change
• Substantial Change
• Modification
• One-Year Rule
• Below-Guideline Child Support
• Findings of Fact
• Conclusions of Law

Transcript

Episode 145 | Material and Substantial Changes: Can you file? Should you file?

Emily Doron: I think good attorneys know how to have that conversation and to say “I get it. This order stinks.It’s not great for you, but it’s an order and until there’s a change, it is a waste of your money and your effort.” And so, that conversation happens way before a courtroom. You should not end up in a courtroom if that’s the only issue. You should know to have that early and often.

Announcer: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, attorney Holly Draper

Holly Draper: Hello, everyone, and welcome back to the Texas Family Law Insiders podcast. Today, I am joined by Emily Dirone, who is a senior attorney here at the Draper Law Firm, and we’re going to talk about something that seems like a pretty basic concept, but I think a lot of attorneys and judges maybe don’t quite understand it like they should, and that is the concept of material and substantial change. What is it? When do you need to prove it? What do you need to prove it?

So whether you’re filing a modification, you’re defending one, or you’re just screening a potential client at intake, the material and substantial change standard is the gatekeeper for any modification case, whether it is possession-related or whether it is child support related.

So material and substantial change shows up throughout the modification statutes in the Texas Family Code, but the legislature has never actually defined it. So in order to get there, we’re going to need to look at case law, and we’re going to need to look at the facts of the particular case, and this, I think, is where people can get tripped up.

So Emily, why don’t you start with, what is it and where does this come from?

Emily Doron: Sure. Thanks so much for having me. It’s… We see it multiple times, but first we see it in possession and access, and we also see it in regards to child support. The complicated part with this is that, like you said, there is no definition, and so we do see lots of case law about what can be argued and what is material and substantial change, but there’s a lot out there that’s missing. And at least in my practice, I’m finding that different judges are ruling very different ways on similar fact patterns about whether or not material and substantial change exists. You know, the standard ones that we see a lot of that judges, I think, across the board and that case law backs up as changes are a parent getting remarried, a new child being born into one of the households, uh, significant mental health or physical health changes of a child.

Those are some that I have yet to see a judge deny. But some, we are seeing judges taking opposite viewpoints, with child support, is a promotion material and substantial change. Sometimes we do see those same changes, you know, a new diagnosis can impact what their needs are, but raises and things like that, standard raises are not material and substantial change that we’re seeing. So we do see it play out in all of our cases, and it’s often become judge dependent

Holly Draper: And we might sound a little bit like a broken record saying this because it covers so many of the topics that we’ve talked about here on the podcast about how your judge really matters, and the result that you get based on one particular set of facts may be very different even from judge to judge in one particular county, but definitely between counties in different areas of the state.

So, this is why if you are a young lawyer or a new lawyer or you’re just in a new area that you don’t have a familiarity with the judge, it would really be a good idea to see if you can find someone who has dealt with this type of an issue with that particular judge and get some insight into what is this judge likely to do.

Because if you have a judge that is, you know, a stickler for you need a massive change to meet the standard, well, are you going to get there? Do you want to waste that client’s money and time by arguing for something that a particular judge is not likely to get? So, when we’re looking at material and substantial change, we are talking about two fixed points in time.

We are talking about how the conditions existed at the time of the prior order, or if there was, you know, an MSA or something, then we would look at that time, versus how they are now when we are filing our modification suit. So, if we have material and substantial change, is that the end of the question, we’re entitled to a modification, or is there another prong everyone needs to be aware of?

Emily Doron: No, absolutely not. That material and substantial change, it gets you in the door, but it doesn’t actually guarantee that anything changes. The court still has to find that a modification serves the child’s best interest, so you do have to prove both.

Holly Draper: So, how do you explain that two-part test to clients who assume that just because things have changed, they’re entitled to that modification?

Emily Doron: The way I like to explain it to clients or potential clients, at least personally, is material and substantial change is can you file, right? Can we do this without getting shut down immediately? Best interest of the child is should we file? You know, can I get you in the door? That answer might be a really simple yes or no, although sometimes it’s not.

But best interest of the child is the second factor of is this worth your time, your money, the emotional and mental stress that comes with a modification often. But that’s how I do it, is first can you, material and substantial change, and second, should you, which is that best interest question and is it going to be worth it?

Holly Draper: Okay, so let’s talk about when you need it versus when you do not when we’re talking about a modification. So any contested modification, there’s no way around it, you’re going to have to plead and prove material and substantial change. But what about an agreed modification?

Emily Doron: You can waive it.

Holly Draper: But can you waive the best interest finding?

Emily Doron: You can’t, no. That is required no matter what. I will say, if you go get an MSA, you may not have to get a judge’s ruling on whether or not if it’s in the best interest of the child, because they’re going to follow that MSA. But agreed, you’re going to need that material and substantial change and the best interest finding or a way around it.

Holly Draper: Now, practically speaking, I don’t know that too many judges are requiring you to put on any evidence to actually prove that. It’s usually just as simple as having a finding in your agreed order saying it’s in the best interest and submitting that with signatures. I have yet to see someone reject it.

But be aware that the statute does say that the court needs to find it in the child’s best interest.

Emily Doron: Yeah, absolutely. Generally, I think if that sentence is in there, I’m not seeing judges deny orders.

Holly Draper: So, one little hitch that everyone should be aware of is modifications within one year of a prior order.

What do we need to be on the lookout for in that scenario?

Emily Doron: So, within one year, if you’re trying to change primary, then you have to have an affidavit attached or a declaration, and it has to specifically list facts that are, show that there’s danger to the child or voluntary relinquishment, and that burden is high.

I have seen judges kick those, dismiss them on their face, refuse to set hearings, because the, either there’s no affidavit attached or the affidavit doesn’t reach the burden. And I’d be careful and look at the actual specifics of that statute because the loopholes in some affidavits, things like hearsay, and other sorts of things, you can’t use those in this kind of affidavit. It has to be based on personal knowledge

Holly Draper: And it’s really a little bit of a tricky distinction of whether or not your modification seeks to change the primary designation or seeks to change something different. And even if you’re not technically trying to change the primary designation, if you’re trying to change the schedule in a way that effectively changes the primary designation, that’s still going to fall under this and require it.

But even if a potential client wants to modify something that is not that, they’re not trying to change primary, they’re trying to change … maybe they’re already primary and they’re trying to reduce the person’s access, or they’re trying to change something else. I would still look with a really critical eye at whether or not It’s justified to file a modification that quickly, because I think a lot of judges see that year mark as, if you’re coming back to court within a year, it is really going to be hard for me to change anything, unless something super serious or dramatic has happened.

Emily Doron: Yeah, I’d say you better have some really solid information that a child is in danger mentally, physically, or emotionally, otherwise you’re just going to have a very angry judge that you’re re-litigating a case so closely together.

Holly Draper: Yes. Okay, so child support modifications. This is something internally in our office we’ve been having some debates about, what does the statute say versus what are courts actually doing what constitutes a material and substantial change when it comes to child support.

So, the code on its face seems to have two different paths for modifying child support, one being a material and substantial change, and the other being that it’s been three years since the last order, plus the guideline amount differs by at least 20% or $100 from the current order. So, the question then becomes if we’re looking at material and substantial change that doesn’t fall within the three year or 20% rule, what gets you there? Can you get there with changes in income… things like that? What are you seeing, what do you think the concerns are on this front?

Emily Doron: So, I am seeing judges grant modifications as to child support based on material and substantial change when it comes to things like a new mental or physical diagnosis of the children that requires additional care, right?

Their level of care has significantly changed since the decree. I am seeing judges grant that. What we’ve seen judges deny recently, which was a shock to the attorney that tried it, but maybe, maybe sh- it shouldn’t have been, we’re not sure, is, is a significant change of income a material and substantial change?

And I don’t mean the annual 3% raise-for-inflation, right? I mean a promotion where income is doubled, or multiple promotions within one year where income is doubled or tripled or more. Is that alone, that promotion and income increase, enough to get you a material and substantial change?

I would say yes, if it’s significant and unexpected, but we’ve had judges say no, and I can see the argument for both sides

Holly Draper: Well, and I think an important distinguisher on that is what was in your prior order?

Was your prior order based on the guidelines? And if so, did you know that in a month he’s going to be getting a big raise? Or has it been a year and this promotion came out of nowhere? I, when we were just discussing this earlier, we talked about having heard from judges or practitioners the argument that, well, promotions aren’t unforeseen.

But you don’t grant child support presuming that a promotion is coming. So I don’t think it should matter that a promotion is foreseeable. It should, okay, we’ve had the triggering event now of this promotion or this big raise, and that, in my opinion, should absolutely constitute a material and substantial change sufficient to trigger a change in child support.

Where we see that not being the case is if the prior order was not guideline. So, and I don’t necessarily agree with this analysis, but, if, let’s say that guidelines say that Dad should pay Mom $2,000 a month, and we’re in mediation, and we’re looking at a settlement, and Dad says, “I’m only going to pay $1,700 a month,” and Mom decides, “You know what?

I’d rather take $300 less a month than spend $30,000 to go to trial, so I’m going to agree to that.” Mom could now be hamstrung in the future because she agreed to take less than guideline if Dad suddenly is making significantly more money I don’t agree with that analysis, but I know that it exists and I’ve seen judges do it, and so it’s something to be aware of, especially if you’re in the negotiating room with a client.

Emily Doron: Yeah, absolutely.

I absolutely always caution clients who are stuck in that point, right? Is it worth the $300 a month to go to final trial over this? And part of that analysis for me is, if you ever want to be able to change this in the future, it’s not about today, because judges will hamstring you on it.

And I agree, I don’t think that it should happen that way, but I really caution clients against agreeing to anything less than guideline. If they want to agree to more than guideline and they’re, the one receiving the child support, absolutely, more power to them. That’s only going to benefit them in the future, of course.

But agreeing to less, what I’m seeing in actual practice, not necessarily what I believe the statute reads, but in practice, I am seeing judges say, “Well, you agreed to less than guideline, you’re stuck,” or, “You haven’t met the burden, it should be higher.” I think that judges are, whoever is making these decisions, is forgetting that we make those decisions for many reasons, not necessarily because we think they should be paying less than guideline, but maybe it’s worth the mental or emotional distress.

Maybe it’s worth the cost of a trial retainer, and it wasn’t, “Oh, they should pay less than they owe,” it’s, “This is how I settle this case.”

Holly Draper: And I think if you find yourself with a client who agreed to below guideline child support and the other side now makes significantly more money- Run an analysis of what else has changed to justify going back to try to get that child support increased, because, particularly if you have a judge that might be one that says, “Hey, you, you agreed to below guidelines, so too bad, so sad.”

Well, if you can show, now the child is in private school, or now the child has become a really great soccer player and they’re, you know, it costs all this money, whether or not those will get you there, I would certainly try and make those arguments too, not just the one thing that his income has gone up, to maybe give the judge something else to think about as to why things have changed.

This child, yes, it’s foreseeable that a child is going to get more expensive as they get older, but maybe there’s something unique about your particular situation.

Emily Doron: Absolutely. With material and substantial change, more is better. this is not one of those cases where I would only pick your strongest avenue and go with it.

If there are other reasons to argue material and substantial change, even if they feel like a reach, I’m going to put all of them on the record and in front of the judge, because I’m going to give them every reason I can to believe me that there has been a change.

Announcer: This episode of the Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non-parent custody cases, jurisdiction issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access.

For more information, visit draperfirm.com or call 469-715-6801.

Holly Draper: Okay, so let’s dive into how do we prove it.

So, if you end up in trial or in a hearing, you are going to have to put on evidence a material and substantial change. So, walk us through what that looks like to prove it.

Emily Doron: Sure. First and foremost, offer the last order into evidence. I see young attorneys think that they can just talk about it, because the judge can look at it on their computer or should know about it.

No, offer it into evidence. It is an exhibit. It should be offered into evidence so that you can truly discuss it. and then once I do, to me, I say, okay, at the time this, let’s call it a decree, it may have been a prior order, but at the time this decree was signed- What was going on? And you are walking a fine line here, right?

Things prior to the decree aren’t inherently admissible in our current trial, but it does prove your material and substantial change. So I do try to get in at least the bare bones, right? Who was living in your house? Who was married? What children were there, if that’s the avenue we’re going with. If it’s child support, it’s was there a new diagnosis?

Were they diagnosed with that before or after the decree was signed? Were they being evaluated for that before or after the decree? So you have to prove what was happening at the time the decree or the MSA were signed, and how that has changed. And so today, where we are, what has happened since then?

You cannot just talk about what’s going on now, because technically the judge should not be applying any knowledge, or may not have any knowledge, about what happened in the last order. , So it is absolutely important that you make it really clear for the court, okay, at the time before the decree, at the time after the decree.

And it may seem like, oh, this is simple, the judge should just catch on. No, ask that question. Before the decree, what was happening? After the decree, what was happening? Make it really clear to your judge, because they’re thinking about other things, or they’re watching the witness, or whatever it may be.

The clearer you make it, the more likely you are to succeed.

Holly Draper: Well, and also keep in mind, if that prior order was based on a trial, you want to make that argument as of what was going on at the time of trial, because maybe that order got signed shortly thereafter, but maybe it didn’t. I mean, we see cases where Courts aren’t ruling for months or a year after a trial, and a lot of things could have already changed between the trial and the signing of the order.

So look, you know, look at those dates, see when the truly relevant time period is to argue what was happening before.

Emily Doron: Yeah, and as a part of that- And- … it’s also the MSA, right? If an MSA was entered, that’s the date. Same as with the trial.

Holly Draper: Yeah, and if the other attorney tries to argue, “Oh, you can’t put on evidence of what happened before the prior order,” be ready to argue, “Look, this is the baseline. We, uh, you have to have this evidence in order to prove material and substantial change.” It’s not the same thing as arguing about, or putting on evidence that somebody was a bad mom six months before the last order. Totally different.

Emily Doron: Yeah, it’s not character evidence. We’re just trying to prove material and substantial change.

I do find that most judges are going to allow it, but know that some attorneys are going to try to stop you.

Holly Draper: And it could be a challenge, depending on how old that order is and did, you know, some orders will say, you know, I, Dad had a income of X dollars, and the guidelines were applied, and this is the calculation.

But some of them don’t say that. So as an attorney, you might not be able to look at that order and know what the child support circumstances were, income, et cetera, at that time. And so you’re going to be relying on does your client know? Can they say how much dad was making back then or mom was making back then?

I think it’s easier with possession-type issues to remember, oh, well, Dad wasn’t married then, and now he’s got this, new wife and new kid. Obviously, those things are easy. But when we’re talking about income, that can be a little bit of a challenge.

Emily Doron: Absolutely.

Holly Draper: So what type of evidence, let’s start out on possession For trying to prove material and substantial change now, what do and to show things have changed from how they were back then- Sure

what type of evidence are you going to put on?

Emily Doron: Sure. If the children were really young at the time of the prior order, I’d say under the age of three, , then you’re going to have material and substantial change. That doesn’t mean if you try to modify at three and a half, you’re going to get there. But if the child was two at the time of the prior order, and now they’re 12, judges are going to say that was a material and substantial change.

Things like getting into trou- big trouble at school. If they’re being diagnosed with ADHD, ADD, anything else, any other neurodivergent diagnosis, right? Do they have a new IEP or 504 plan? Those are changes. Now, if your five-year-old was already diagnosed with ADHD, and then they’re put on an IEP plan later, I don’t know that a judge would find that a material and substantial change.

That should be anticipated, right? Other types of things, we’re seeing new siblings or a marriage, like we discussed. Someone living, moving outside the geographical area. I have seen judges grant that as material and substantial changes. For other kids things, a child over the age of 12 wanting a change.

That doesn’t actually fall under material and substantial change, but it is a way to get into court in a loophole, if you’re willing to put that child in the chambers with the judge to express what they want, of course. Those are the main ones that I’m seeing, but like you said, with possession and access, I am not seeing as high of a burden to get judges to modify, with the exception of if it’s a really quick modification.

Holly Draper: Well, and a lot of what you mentioned dealt with changes that maybe the child has undergone, but there also could be changes that a parent has undergone. A parent has gotten a DUI, or they have, had drug issues or some type of change in what… You know, the parent is now working nights, and they’re never around or something like that.

So you want to look at all of the parties. What’s changed for the child? What’s changed for mom? What’s changed for dad? If there’s any other parties involved, what’s changed for them? So we can get the whole picture of where things were then versus where things are now.

Emily Doron: Yes, material and substantial change is a question for any party or any child, so it doesn’t just have to be for the children.

Holly Draper: Okay, so what, are there any other practical takeaways that you would have for attorneys if they are going to try and prove and win based on material and substantial change?

Emily Doron: Sure. So focus on that timing trigger, right? Like we discussed just a minute ago is when did this change actually occur? And I personally like to start my case with the things I have to prove, not the things I necessarily want to.

Yes, you have the judge’s attention right then. It’s the most important because while it may not be the most exciting part of your evidence, right, it’s not the most fun, it is the most important. And so at the, the first questions I’m going to ask are what was happening then and what is happening now?

Okay, let’s dive into that, right? I’m going to lay that foundation very early so that the judge knows I see this burden, and I’ve already proven it, so you can just gloss over that, Judge, right? Don’t, don’t you worry about that anymore. I’m going to give you the fun part now, right? That is vital. I do see it, some attorneys trying to plug it in throughout their questions or save it until the end, and if you save it till the end, you are much more likely to forget.

Um, you may get wrapped up in your questioning or did I offer this exhibit, and you’re going to forget that vital question. And a good-

Holly Draper: Or you run out of time, and you don’t get there

Emily Doron: Or, or worse, you run out of time, and a good attorney on the other side is, if you didn’t run out of time and you just forgot, they’re not going to cross.

They’re just going to rest, or they’re going to reserve their cross. And then when you’re done, th- they’re going to ask for a dismissal, and they’re going to be right. So to me, do it early. Do it at the beginning. Let the judge know that you know it exists and move on because otherwise there’s just too much risk.

If a judge denies your request or says there was no material and substantial change, request a findings of fact and conclusions of law. That will give you the opportunity to appeal, or to reach out to an attorney who specializes in appeal or to ask your client if they want to appeal. But without doing that, you are risking a potential appeal for the future, and I think setting your client up for failure if they want to appeal

Holly Draper: Another thing to keep in mind is not to conflate change with not liking something or with a disagreement. Just because a parent doesn’t like a current arrangement does not mean that they meet the requirements for a material and substantial change in circumstances. And not liking it is different than something not working. So if something doesn’t work because the kid’s always late to school because one parent lives too far away, or their grades have gone down because they’re spending too much time in the car driving back and forth or whatever the case may be, you know, those things are beyond just, “I don’t like this schedule. I wanted this other schedule to begin with, and I didn’t get it, so I’m going to try again.”

Emily Doron: And I think that’s a conversation you have at the beginning. That is not a trial conversation. That is not something, that you try to overcome in a courtroom. That’s a conversation I’m going to have with someone during a consult, is this not working or do we just not like it?

Is this an actual change, or is it just not our preference, right? Because it, maybe you don’t get that client, right? Maybe they don’t retain, but you’re also not ending up in a courtroom six or nine months later with your client $50,000 in the hole and a judge dismissing your case because you don’t have a material and substantial change.

And so yes, I get it, it is hard to tell a client in a consult, “You shouldn’t do this. You are not going to win.” I think good attorneys know how to have that conversation and to say, “I get it. This order stinks. It’s not great for you, but it’s an order, and until there’s a change, it is a waste of your money and your effort.”

And so that conversation happens way before a courtroom. You should not end up in a courtroom if that’s the only issue. You should know to have that early and often.

Holly Draper: I agree 100%.

Well, I think we’re just about out of time, but thanks so much for hopping on with me today.

Emily Doron: Thanks for having me.

Holly Draper: Hopefully we gave everybody some good tips and tricks for material and substantial change. And for our listeners out there, if you enjoyed this episode, please go give us a like and a review and subscribe to enjoy future episodes.

Announcer: The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law and appellate matters.

For more information, visit our website at www.draperfirm.com.