Sometimes, after a divorce is final, people find that the terms of their final order (either divorce decree or final SAPCR) are either no longer applicable or circumstances in their life, the child’s life, or their spouse’s life have changed to a point they want to modify their divorce decree.
The law allows for parties to modify their divorce decree. However, Courts do not want to continuously be modifying decrees. There are rules in place in order to prevent one party from constantly bringing motions to modify. If you’re wanting to modify your final order you should consult with an attorney and discuss the following questions:
The Texas Family Code allows for Court to modify an order regarding conservatorship of a child, rights and duties of a conservator, or the possession schedule of a child if 1) It is in the best interest of the child, AND 2) the circumstances of the child or conservator have “materially and substantially changed.” Tex. Fam. Code §156.101(a)–(b). This “material and substantial” standard is a fairly high standard because as stated, Courts aren’t looking to change orders over and over. You should consult with an attorney who can discuss how your specific facts might fit within the law.
The Family Code also allows a party to bring a modification for a change in child support—but again, the courts require a “substantial and material change.” Tex. Fam. Code §156.401(a)–(d). Has the parent who pays child support received a large raise or decrease in salary? Was a circumstance contemplated at the time of the original order? The answer to these questions and more will help an attorney advise you if modification is right.
Some people have clauses in their decree that require the parties to attempt mediating any potential changes prior to filing for a modification. Depending on the wording of your final order, you could be liable for some portion of the other side’s legal fees if you filed for a modification without following the mediation clause. If you’re not sure, consulting with an attorney could help you avoid a problem.
First, children aren’t going to “testify” as you think of adults testifying on the stand in open Court. The Family Code does allow for a child over the age of 12 to be “interviewed” by the Judge in chambers. Tex. Fam. Code §153.009(a)–(f). Contrary to popular belief, the child doesn’t simply get to decide what they want. Some judges aren’t too fond of parents bringing children into lawsuits and other “adult issues.” This is a potentially delicate situation that you might want to talk through with an attorney before you run your child up to the courthouse.
A lot of people have a variety of “agreements” that they’re following in contrary to their final order. While it’s a nice sentiment and obviously better than having no agreement, these agreements are not legally enforceable. Having something notarized doesn’t make it an order, a notary simply certifies that the person signing a document is who they purport to be. In order to protect your rights as well as give you something that is enforceable, you need to have a signed order by a judge. If the parties truly are in agreement, getting an agreed order might not be terribly difficult. However, problems occur when one parent decides to change their mind and no longer follow the informal agreement.
That’s the big question, isn’t it? Unfortunately, there’s no way for anyone to really know. When the parties are in agreement with the terms of the modification, then agreements can be made quickly and orders were drawn up. When the parties are not in agreement, that’s when things can take a turn for the worse. Like any lawsuit, mediation is an option and less expensive. However, if one party decides to make a modification to court you could be looking at a long, drawn-out and expensive process. Talk with an attorney to get an idea of your specific facts are worth bringing a motion for modification.