Changing Child Support

Many reasons exist why a child support order might need to be changed. For example, one parent may lose or change his or her employment or suffer disabling health conditions.

What is a Material and Substantial Change?

As stated, child support payments can only be modified when the Court finds that material and substantial changes have occurred since the entering of the last child support order, which will justify a new order. What exactly constitutes a “substantial and material change” is an open question and subject to the court’s assessment in each modification case.

Over time, Texas’ courts have identified several circumstances that amount to a material and substantial change.  For example, marriage to another person, a change in residence, age, medical condition, employment, criminal history or the relationship between the parents making the current orders unworkable can be found by the court to be a material and substantial change. A court can change or modify the current child support order if the circumstances of the child or a person affected by the order have materially and substantially changed.  The order can also be changed if it has been in effect for over three years and (pursuant to the Family Code’s guidelines) amounts paid thereunder would increase or decrease by $100 or 20%. 

What Factors do the Court Consider?

Generally, a material and substantial change in circumstances means that at least one of these things has happened:
• The noncustodial parent's income has either increased or decreased,
• The noncustodial parent is legally responsible for additional children,
• A parent’s marriage to another person,
• A parent’s change in residence, age, medical condition or criminal history,
• The child's medical insurance coverage has changed (a parent who pays support is also expected to pay the child’s health insurance premiums and part of the uncovered medical expenses for the child. Given the rising costs of both health insurance and medical care, issues relating to health insurance – including policy types and minimum coverage requirements - are frequently the subject of motions to modify child support),
• The child's living arrangements have changed,
• For some parents, military activation will mean a reduction in total monthly income. Being called to active duty is considered a material and substantial change in circumstances, 
• A finding that a man is not the biological father of the child (pursuant to a paternity test), and/or
• Change in costs to exercise possession – if one parent never exercises their visitation and therefore increases the child care costs of the other parent. If the custodial parent moves away from the other parent, the non-moving parent can ask for a reduction because of increased costs.
A court cannot change a past due child support obligation.  It can only change future support obligations.  If a parent has suffered a change of circumstances, such parent should notify the Court and the Texas Attorney General and thereafter file a petition as soon as possible. 

How Can I Change My Child Support Payments?

To modify a current custody, visitation or child support order, a parent files a petition with the court and asks for a modification.  Any request for a modification filed with a Texas court will have to be consistent with the requirements set out in Texas’ Family Code. In many cases, the help of an experienced attorney is needed to avoid getting lost in the jungle of Family Law rules.

For example, if a person seeks to change custody less than one year after the original order was signed then the person seeking the modification must also file a sworn affidavit. The affidavit must set out facts establishing that, unless a modification of custody is granted, the child in question is in danger of physical or emotional harm. Moreover, a person whose rights may be affected by the modification of an existing custody order must be served with the filed petition and a citation.

The citation is issued by the Clerk of the Court and instructs the person being served that he or she has approximately 20 days to file a written answer in the lawsuit. If a person is served with a citation and does not file an answer, they may be prevented from requesting relief from the Court — if such person wants to contest the modification lawsuit. Once all persons that have an interest in the modification suit are served with citation, or have intervened in the proceedings, the court may rule to modify an existing order. Moreover, once the petition is filed and served, a court can enter temporary orders if properly requested.  If the modification petition is by agreement of both parties, the process may be completed quickly.  In such a case, the entire modification process can be completed without the formality of a court hearing. However, if one party wants to contest the modification, then the court will have to schedule the case for final hearing/trial.

The Three Year Rule

Generally, the Texas Family Code sets out two bases that allow for the modification of child support. The first is commonly known as the “Three-Year Rule.” The Three-Year Rule mandates that a parent may file for a modification of child support obligations if three years have passed since the child support amount was either ordered in the divorce decree or was last modified, and the new amount of child support that should be paid differs by at least 20% or $100 from what is in the existing order. If a previous order was based on an agreement and such amount was either higher or lower than what the guidelines would have mandated at that time, then the Three Year Rule is not available for use in applying to modify the support amount.

What if the Other Parent Lives in a Different State or Country?

If the parents live in different states, a parent may use the Uniform Interstate Family Support Act (“UIFSA”) to enforce the child support order. The UIFSA requires states to cooperate with each other to establish, enforce or modify child support orders.

When parents have a case with a child support order, and they live in different states or countries, the child support order may be registered in the county where one of the parents lives. Once the order is registered, a parent can request that the order be enforced and/or modified in that country’s courts. Child support laws vary from state to state and not all countries have agreements with the United States to establish or enforce child support orders.

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© 2015 Oberheiden Law Group, PLLC | All Rights Reserved.
Pursuant to TDRPC 7.04(b)(1); Click to view Responsible Attorney. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact