Divorce Modification Attorney

San Antonio

Divorce Modification Attorney

A judge will issue a final divorce decree when a marriage is legally dissolved in Texas. This formal judgment resolves any outstanding issues in the divorce case, including matters affecting child custody, child support, spousal support (alimony), and the division of marital property. Once issued, the divorce decree is legally binding on both parties.

Is that possible? It’s often “yes,” but it can be complicated. That is why working with an experienced San Antonio divorce modification attorney is important.

David J. Rodriguez has 30 years of experience in family law. He can advise you on the best action to seek a divorce modification, including offering mediation services. While it is always ideal to reach an agreement regarding possible changes to a divorce decree, he also understands there are situations where that is not possible, and a contested proceeding may be necessary.

Can You Overturn a Divorce Agreement?

It is important to distinguish a divorce modification from a divorce appeal. Once a court issues a final divorce decree in Texas, either party has 30 days to file an appeal. This is a legal challenge to the judge’s decision regarding one or more issues. An appeals court will review the trial judge’s conduct and order a new trial on the contested issue.

However, a final divorce decree can only be altered through a modification proceeding outside of the appeal process. Effectively, this is where one or both parties file a new petition with the court seeking changes to a specific part of the divorce decree, such as child support or spousal support. Different laws apply to other modifications, and some portions of a divorce decree cannot be modified after the fact.

Here is a brief explanation of how divorce modification works in Texas about specific subjects:

Child Custody and Visitation

When a divorcing couple has minor children, the final decree will include orders regarding custody and visitation rights, which are known in Texas as “managing conservatorship” and “access” rights, respectively. As with the original proceeding, any proposed post-divorce modification will be assessed by determining what is in the child’s best interests.

Generally, a court will not approve a change in managing conservatorship or access rights unless there has been a material and substantial change in circumstances affecting the child’s welfare. These changes can include, but are not necessarily limited to:

• A parent needs to relocate for work or other reasons;
• A parent has been convicted of family violence or child abuse;
• There is evidence that the child would be in physical or emotional danger if they were allowed to remain with the parent;
• A parent was granted managing conservatorship but has relinquished that right for at least six months; or
• The child is at least 12 years old and prefers to live with a non-custodial parent.

Minor changes in a visitation schedule will generally not require judicial modification. For example, if the parents agree to swap weekends for visitation to accommodate an emergency, that differs from what will need the court’s attention. But a modification will be necessary if a custodial parent is proposing a more permanent change, such as relocating with the child out-of-state.

Child Support

Texas maintains a set of child support guidelines that judges must follow when establishing a non-custodial parent’s financial support obligations. The guidelines base support on a percentage of the parent’s net resources and the number of children they must support.

But the guidelines also place a “cap” on the net resources a parent can use for child support. This cap is adjusted every six years and was last revised in 2019. After an adjustment, a custodial parent who is receiving child support can seek a modification to raise the non-custodial parent’s obligation based on the revised cap, provided at least three years have passed since the last revision and the change in payment would be more than 20 percent or $100 per month.

And as with modifications to child custody, a Texas court can also modify the terms of an existing child support order based on a material and substantial change in circumstances. This generally requires proof of one of the following:

• The parent required to pay child support has experienced a significant increase or decrease in their income.
• The parent required to pay child support is now responsible for supporting additional children.
• The child’s living situation or needs have changed.

Texas law was also modified recently to permit modification of a parent’s support obligations if they are incarcerated for at least 180 days. While in prison, a parent’s child support obligations may be reduced or suspended. But upon release, the court can order the parent to resume payments.

Spousal Maintenance

Spousal maintenance or alimony is not awarded in every Texas divorce case. Indeed, Texas law limits the circumstances when a court can award maintenance and how long support can last. Some events can also automatically terminate alimony, such as the recipient’s re-marriage or the death of either party.

But a court may also modify or terminate a spousal maintenance order based on a substantial and material change in circumstances. For example, if the alimony recipient’s financial situation has suddenly improved by finding a job or receiving a large inheritance, the payor can ask the court for a modification. Similarly, if the recipient spouse starts living with another partner–but does not get re-married–that can also be grounds for the transformation of a spousal maintenance order.

Property Division

A property division order is one area where you cannot seek a modification of the divorce decree. Once a judge orders a division of marital property, that is final. You can ask the judge to clarify or enforce an existing property division order. A new legal proceeding is necessary if any additional marital property that was not subject to the original division order is discovered.

Get Advice Before Modifying a Divorce Decree on Your Own

Not every divorce modification means returning to court to battle with your ex. Indeed, in many cases, both sides agree on the need for improvement due to a change in circumstances. As previously noted, it is even possible for the parties to reach informal agreements on temporary changes to a divorce decree’s conditions without seeking judicial approval.

But remember, any “informal” agreement between you and your ex is not legally binding until a judge signs off on it. The court must approve any permanent changes to a Texas divorce decree. If the parties agree to a transformation, they can file a joint stipulation with the court, and in most cases, the judge will give their blessing.

Before making any changes on your own, however, it is always best to consult with an experienced San Antonio divorce modification attorney. Contact the Law Office of David J. Rodriguez, PLLC, today at (210) 716-0726 to schedule a consultation.