Depending upon the age of the children involved at the time of the divorce, a child support agreement can be around for a while—anywhere from months or even years. Thus, it should be expected that the document will need to be modified at least once while it is in effect, to take into account changes in the circumstances of the co-parents, the children, or both. Of course, the court has the last say on whether the specific changes sought are acceptable; but, the law recognizes that there are certain situations in which modification can be acceptable.
- There have been no adjustments for three years. If an agreement and support order has been in place for at least three years with no adjustments, and the monthly support amount under the Texas Family Code statutory guidelines would change more than 20 percent or at least $100, then the parties can petition to have the agreement amended.
- There has been a material and substantial change in circumstances. Not surprisingly, this one gets a lot more fanfare and attention. That is because a material and substantial change in circumstances is a very fact-specific question.
The burden of proof is on the party who is seeking to modify the agreement to prove that one or more of the parties to the agreement has had a material and substantial change in their circumstances—or those of the child—since the last order was entered by the court or signed in private mediation. Often times, determining whether or not there has been a material and substantial change requires a trial or hearing.
At a bare minimum, there are certain “traditional” situations in which the substantial and material change provision may be triggered such as when one of the co-parents loses a job or if either party has a significant change in income. Other changes that the court may consider include:
- Situations where the supporting party has become responsible for caring and supporting other children in addition to the child in the order.
- Situations where the child who is being supported has new educational, psychological, or medical needs that are not otherwise paid for by insurance.
- There are changes in the insurance coverage of the child as linked to the parties.
- If the child changes his or her domiciliary from one parent’s house to the other.
- If there are increased or decreased costs for maintaining the home for the child.
- If there is a finding that the paying partner is not in fact the biological father.
- Incarceration of either party.
The law does not allow changes in the child support order to become retroactive back to the date of the actual change. Therefore, it is imperative to seek to have a child support order modified as soon as possible to be able to minimize the impact on the supporting party, the custodial parent, and the child being supported. And, of course, remember that the court must always approve any changes in the child support order, even if there is an agreement.
For these reasons, it is imperative to have responsive, knowledgeable counsel on your side to advise you as to whether or not you can seek a change in the support award, and to then file it on your behalf. The Alsandor Law Firm is ready to help you take on this challenge and see it through. Call today to get started.