After going through a child custody case in Texas the last thing on your mind may be the possibility of a second or third case once the initial case is over. Even the most diligent of parties may find that their court orders do not suit them well after a year or two passed by. The reality is that circumstances change for people whether or not you want them to. Work schedules, school schedules, medical needs in other circumstances come up that can forever alter the course of your life and that of your children.
A lot of this discussion depends upon the area of your life that has changed since the time of your last trip to court. To be sure, if you are talking about child custody it could be several subjects related to the life of your child that could be impacted. For instance, we know that the needs of your child may have changed in the past few years. While your child’s aging is not something that in and of itself can be cited as the reason why a change in custody needs to occur there may be some aspect of your child’s life that has changed that should be brought before a judge for consideration.
Before we discuss the grounds for changing custody orders in Texas I think it is worthwhile for us to discuss what areas of your life may have changed since the last time you were in court and what you should be looking for in this regard. What I am trying to get to is to help you identify those areas of your life where you have legitimate concerns over the need to modify or change in order and those areas that are more or less temporary or do not necessarily justify your filing a lawsuit.
One of the most contentious issues that can change over time is that related to child support. Even though child support tends to be a subject that is determined by the Texas family code rather than the specific factors in a case it can still be a contentious issue. There is something about having to pay money to the next spouse that can be very stressful and difficult for people to handle. On top of that, you would need to consider the reality that your ex-spouse and Co-parent would be in control of those resources instead of your children.
Over the next few years, you and your child may experience changes to your lives that necessitated modification. For instance, your income may increase or decrease substantially. This is especially possible given the hits that our area has sustained in the past 14 or 15 months in the oil and gas industry and about most any job with the pandemic hitting us. On the other hand, you may have seen your income increase over the past few years, and as a result, there may be cause to call for an increase in the amount of child support that you should be paying. Regardless of the trajectory of your income, you may need to modify or change the child support that you pay or receive.
A question that I run into with some regularity is whether or not you need to file for an adjustment or change as soon as your income dips- even for just one month. Suppose that you work a job where you have an income that is unpredictable and based on commissions. In that case, you should consider that your first step is likely with a representative from the Office of the Attorney General and not a family court judge. Many mothers and fathers will contact the OAG and set up a consultation with one of their employees along with your co-parent (if he or she will attend).
These consultations take on a sort of meditation-like feel where your co-parent can negotiate with you over child support. It would not be uncommon for the employee to consider what your most recent paycheck looks like in addition to the past three to four months. An average will be taken in light of how your income has shifted in the past. You should also think about what your income is likely to do in the next several months in terms of fluctuations. If your income is likely to increase then it may not be worth your while to even attempt a short-lived decrease in child support.
Another set of circumstances for you to consider relate to the needs of your child. For instance, if there is a material and substantial change in the needs of your child then you may find yourself paying more in child support. For instance, if you are the primary conservator of your child and you receive a diagnosis that requires regular medical treatment over and above what health insurance pays. In a situation like this, there is certainly a significant change in circumstances that has developed since the time of your prior order being issued.
In that case, determining the needs of your child every month and the increase in child support that would best meet those needs would be in your child’s best interests. The key issue, of course, is whether or not your co-parent is in a position to be able to increase the amount of child support he or she pays. However, filing for an increase in child support given these circumstances would be a reasonable decision to make.
Another factor that may lead to a change in child support after a child custody or divorce case is if the non-custodial parent begins to incur increased costs associated with visiting your child. For example, suppose that you or your co-parent move for any number of reasons. Now, increased costs associated with airplane travel, car travel, or anything in between have increased dramatically as a result of these changes.
Here, a possible reduction in child support may be warranted due to the increased costs associated with traveling to see your children incurred by your co-parent. The specific amount of those costs as well as what is in the best interests of your child would need to be considered. However, you and your co-parent could discuss this subject in advance of any child support modification case to determine if there is any middle ground that could be reached through mediation and informal settlement negotiations.
Spousal maintenance and contractual alimony
Many of you may be familiar with concepts like alimony and spousal maintenance after having read about them on our blog. Still, many others are unaware that Texas has and different way of administering and allowing for post-divorce spousal support when compared to most dates. Most folks would refer to any form of post-divorce spousal maintenance as alimony in a general sense. However, in Texas, two different types of post-divorce spousal support are relevant. It could be that either figure needs to be changed after your divorce.
I realize that today’s blog post focuses on changes from a custody order that may be relevant to your family in Texas. However, I also think that when it comes to finances we cannot remove how important post-divorce spousal support is for you and your family from the discussion of general issues related to child custody. The fact is that if you cannot meet the obligations of the four walls of your house then just about every area of your life is going to be impacted. As a result, I think it is relevant to those of you who are receiving either contractual alimony or spousal maintenance to discuss how those topics may be impacted in a potential modification case.
For starters, we need to consider the reality that you may either receive postal or spousal support based on a judge’s order or based on something agreed to in mediation. As a result, the type of support will be called different things. Contractual alimony refers to post-divorce spousal support that is agreed to with your spouse and mediation. Spousal maintenance is ordered in a divorce trial by a judge. However, these issues are treated similarly if a modification or change needs to be made.
If you are responsible for paying contractual alimony or post-divorce spousal maintenance then your initial concern probably lies with being able to ensure that you can make your monthly payments on time and in full. In this way, contractual alimony and spousal maintenance are similar to child support. The failure to pay these benefits every month could result in your being hauled to court on an enforcement motion filed by your spouse. Ask such, you will want to make doubly sure that you can have enough money each month available to pay these obligations.
Were your income to decline you may find yourself in a position where you are unable to meet the obligations of child support, spousal maintenance as well as the bills of your household. In that case, it may be necessary for you to attempt to reduce your obligation in child support or spousal maintenance. The process of doing so would be similar to a situation where you only had to pay child support. I would recommend hiring a family law attorney to discuss your circumstances before filing a case.
The other important factor that I wanted to discuss regarding post-divorce spousal support relates to the possibility of having your obligation to pay support completely dismissed. This could be the case if your ex-spouse begins to reside full-time with someone he or she is in a dating or romantic relationship with. For instance, you may have heard through the Grapevine next spouse started dating someone and moved into his or her home. This alone is reason enough to have your spousal maintenance for contractual alimony obligation dismissed depending on the terms of their contractual alimony that you negotiated with your ex-spouse.
The devil is in the details, however. To have your obligation dismissed you would need to be able to present sufficient evidence to a judge to show that not only is your ex-spouse in a dating or romantic relationship but that he or she has moved in with their partner on a full-time basis. You would need to have some evidence to show this to a judge and it is very unlikely that your testimony or that of another person would suffice. With this being the case it would be very beneficial for you to be able to hire an attorney to represent you. The ability to not have to pay a special man insert contractual alimony could be a big benefit to you in your post-divorce life. It is best to go into a hearing on this matter prepared with an attorney rather than unprepared without one.
Visitation and possession changes
To close out today’s blog post, I would like to talk to you about how and why it is you may need to have changes made to the Visitation and possession sections of your child custody orders. As we have been discussing throughout today’s blog post change is constantly occurring all around us. Some degree of change has likely occurred within your family since the time of your divorce or child custody case.
One scenario that plays out with some regularity as your children age is that they may want to change who they live with on a full-time basis. For instance, your wife may have been named as the parent with the right to determine the primary residence of your children in your divorce but now that you are some years out from your divorce your children may have voiced a desire to live with you on a full-time basis. There are other factors relevant here, most notably what is in your child’s best interest, but this in and of itself may be a circumstance that justifies filing a modification case.
Children 12 or older have a right to speak to the judge about their preference when it comes to their primary residence is determined. That means that if you or your attorney file a motion for the judge to confer with your child and he or she is over this age the judge must grant your motion. For younger children, it is left up to the discretion of the judge. A family court judge would take into consideration your circumstances as well as the wishes of your child when determining whether to change this conservatorship right.
The other scenario that is possible for you to encounter regarding visitation and possession situations is if a change in work schedule occurs where you are no longer able to meet the obligations of your prior order. For instance, if you work a job where the hours change where you have to work on weekends instead of during the week then you may find that your first, 3rd and 5th weekends of each month’s Visitation schedule does not suit you or your family anymore. In that case, you may need to consider filing a motion to modify your custody agreement.
In the short term, what you may be able to do is to work out an agreement on an informal basis with your Co-parent. This would require the two of you to be able to speak to one another on cordial terms to work out temporary modifications if changes in your schedule or in that of your children are temporary. Having an open line of communication on the subject is much more important than being able to try to solve problems on your own or work around inescapable problems.
However, if you are facing a permanent change in your schedule and any modification on a temporary or informal basis would not be feasible then you should plan on filing for a modification. Again, this does not mean that you have to be overly litigious or out to change the entire complexion of your custody arrangement. What it does mean is that you need to be able to understand what changes require formal modifications and which ones you may be able to get by on with temporary, informal ones.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family may be impacted by the filing of a divorce or child custody case.
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