Grounds to modify a final order in a divorce in which children were part of the divorce also a suit affecting or, suit to establish the parent-child relationship that being a final order and modification to that final order for purposes of an increase or a decrease in child support but then also health insurance.
This article I will touch briefly on modifications to final orders for purposes of changing rights and duties, possession access, and or child custody.
What you’ll need to look at first is your order subject to modification and so if that order does provide for ongoing periodic child support payments and those children are still under the age of 18 and or still in high school then that is an order that can be subject to modification.
Then there is where do you file?
In Texas you’ll want to file in the court that rendered the final order, now you have a fact pattern in which you’ll have a final order from another state and neither one of the parents reside anymore in that state and those are orders that you can domesticate in Texas and then seek to modify for purposes of an increase or decrease in child support.
So for instance if you have a couple who are from Oklahoma and they move to Houston or one of them moves to Houston another one let’s say moves to Arkansas, if neither one of the parents are living in the court of continuing jurisdiction which would be in Oklahoma and the child has moved with one parent into Texas then Texas can assume jurisdiction, but there’s a domestication requirement and so that is a more detailed presentation for purposes of this article our topic is modification of child support up or down in the Texas guidelines.
And so what we start with is interstate if you are within the state of Texas and you have a final order usually that’s going to be out of a county and as it’s out of a county then you have to go back to that county to file the modification, then as you go back to that county it may be the child no longer lives in that county and it’s been more than six months for which you can ask for a mandatory transfer and you get a transfer out of the original court of continuing exclusive jurisdiction to a new court in the new county in which the child resides.
And so that’s something that you may not want to commute if you are from Corpus Christi you move into Houston you may not want to go down there.. that’s a long drive or El Paso somewhere down in the valley in Brownsville and you may say now that I’m in Dallas I don’t want to go back to modify my child’s support, now if you’re the obligor you go where the child’s at not where the payor is living so if you’re paying child support you want to try to modify unfortunately the law provides for a change in venue when the child has moved out of the court of continuing jurisdiction.
You still have to start there you do not file a new case interest state in a county for which the child resides, unless you have an out-of-state order and neither parent is residing in the original state for which the order was entered.
Family code under 156.002
Who may file the family code under 156.002 provides a list of people who may file.
1)A party affected by an order may file a suit for modification in the court with continuing, exclusive jurisdiction.
2)A person or entity who, at the time of filing, has standing to sue under chapter 102 may file a suit for modification in the court with exclusive jurisdiction.
3)The sibling of a child who is separated from the child because of the actions of the Department of Family and Protective Services may file suit for modification requesting access to the child in the court with continuing, exclusive jurisdiction.
So, you have three categories here and then under those three categories you have a broader category of people who can file original suits that also may file a modification. So initially you have the parents, the parents can file.
Family code chapter 102
Then you have a person or entity who has standing in a chapter 102. there’s 14 sections under section 102 subsections that have standing that is to various governmental entities child protective services, attorney general, a guardian, a custodian grandparents if they have actual possession of the child for at least six months, foster parents, relatives of the child who have actual custody and so if you have a final order as to the parents and the child and one of the parents surrender the child to a grandparent then after so many months a grandparent can seek modification to name themselves as a primary..
A sibling, an aged-out sibling can file a suit to modify to get possession access to their brother or sister. And then there is where do you file the Suit for Modification must begin with the court of continuing exclusive jurisdiction, and that is interstate if it’s an out of state order in Texas you don’t need to go back to the original forum state to get a release to get it transferred.
You just file a certified copy in the county in which the child resides, and as you file that the clerk will issue notice there’s 20 days after 20 days if the other side doesn’t respond then you can then file a modification and serve it out and as you serve it out you can ask for a child support increase decrease and or perhaps dental insurance to be added and do other things as to rights and duties, it’s basically a domestication of a foreign order for purposes of modification.
Now when you modify for child support which again is the topic of this article, we get through the preliminary stages which is where do you file, who can file, and then now you have to have grounds to file.
Submit an amendment
So six months after you enter into a final order can you just turn around and modify and go for an increase, generally no that’s difficult they typically want you to wait three years.
During the first year you file a modification you’re subject to what we call Sua sponte dismissal the court can just dismiss it, generally they do not in Harris & Fort Bend County but there is a potential that that can happen.
So the elements to be able to modify or the circumstances of a person, or the child have material substantially changed since the earlier of the date of the order of the rendition or the date of the sign of immediate settlement or collaborative law settlement agreement on which the order is based, or it’s been three years since the order was rendered or last modified and the monthly child support award under the order differs by either 20% or $100 from the amount that would be awarded in accordance with the guidelines.
So if you have a material and substantial change and it’s been less than three years I would still caution you that during the first year after an order is signed that that’s an enhanced requirement as far as usually it’s presumed the way it’s interpreted that there is no material substantial change, now someone gets in a car accident and they go on disability obviously that’s a material substantial change but you lose work and you’re out of work for four months usually the court’s going to say that you need to give it some time to see if you can return to work and that’s where that whole year comes in.
Now after three years there to say that for child support you have to show material substantial change, no you don’t and so after the three years it’s pretty easy to go in there and do a modification up or down it’s every three years is the law.
The way it’s interpreted is that there is a presumption that you should get to look at the obligor’s wages also if you don’t have dental insurance in your order which dental insurance became a provision that was mandatory that the court had to look at whether or not it was available and it could be added for reasonable costs in 2018.
Submit a modification if you do not have dental insurance
So, if you do not have dental insurance in your current court order that’s also a basis to file a modification. Now as far as filing the modification and attempting to go back in time and get some form of a back support or retroactive support this is generally prohibited from the date of the original order up and until the filing of the modification.
So, if you had a final order that was entered in 2017 in 2021 you file a modification let’s say in July and you think that from 2017 the day of the final order until July that window you can ask for some form of retroactive support or you can increase it from the date of the original order forward that’s not the way the law works.
The way the law works is it’s the date of the filing of the modification, or the service, or the entry of a obligor in the case that from that date forward you look at an increase from the filing of the modification forward up until trial. So if you file the modification it’s contested and the court will not give you any form of temporary orders to increase the child support temporarily, then the obligor can have a potential to have some obligation that goes back to the filing of the modification and then a payout going forward up until the trial date, plus an ongoing child support obligation that is increased from the date of that final order forward and so when you file a modification.
What the court can also look at is are there more children that the obligor may have an obligation to provide and now lifestyle changes are generally not a basis to look at as far as granting a modification it’s based strictly on your wages, there is a change in the law in 2021 to where you have your guidelines which is the one child 20% two children 25% with the same couple, but you also have now a low income obligors whose income is under a thousand dollars a month for which that child support obligation is reduced overall by five percentage points.
So if you have an obligor who makes less than a thousand dollars a month that percentage guidelines is no longer 20% but now 15% and I would submit to you that that is a basis to modify based on a change of the law if you have entered into an order in the last three years perhaps because of covid your income has been reduced you’ve had health issues then I would assert that based on the changes in the law with a reduction by 5% in your child support percentage guidelines that you would be obligated to pay for children that this is a basis to grant a modification.
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