Child Support Modification

CHILD SUPPORT MODIFICATION

The Texas Family Code provides three possible grounds for modifying child support:

1. Parties’ Agreement

a.     The court can modify a child-support order if the parties agree to the modification and the modification is in the child’s best interest.

2. Three-year Modification Rule

a.     The court can modify a child-support order if it has been three years since the order was rendered or last modified and the monthly child-support obligation differs by either 20% or $100 from the amount that would be awarded under the current child-support guidelines.

i.     Even if the requirements for the three-year modification rule are met, the court still has discretion on whether to modify the order and to follow the child-support guidelines.

ii.     The three-year modification rule is not available to parties who agreed to a child-support obligation different from the amount that would have been awarded under the child-support guidelines when the order was rendered.  If this is the case, either the parties must agree to a modified amount or the petitioner must plead and prove a material and substantial change in the circumstances of a person affected by the order.

3. Material and Substantial Change in Circumstances

a.     The court can modify a child-support order if the circumstances of either the child or a person affected by the order have materially and substantially changed since the earlier of: (1) the date the order was rendered or last modified; or (2) the date the parties signed a mediated or collaborative-law agreement on which the order was based.

i.     Although not specifically stated as a requirement for modifying child support based on material and substantial change, courts have held that the primary consideration in determining child support is the child’s best interest.

b. Types of Material and Substantial Changes

i.     Statutory—these are changes that the Texas Family Code specifically identifies as material and substantial changes.

1. Parent Released From Incarceration

a.     Under the Family Code, a material and substantial change occurs when a parent who owes child support is released from incarceration if that parent’s child-support obligation was abated, reduced, or suspended during incarceration.

2. Not Military Service

a.     Military service is no longer a material and substantial change for the purpose of modifying child-support under the Family Code.  In 2009, the Texas Legislature repealed Family Code §156.410, which stated that a parent being called into or returning from military service was a material and substantial change.  However, if a court temporarily modifies possession of or access to a child for military service, the temporary order may be sufficient to constitute a material and substantial change.

ii.     Common Law—these are changes that are not defined by statute to be material and substantial but defined in case law.  The determination of whether a change is material and substantial is a fact-intensive inquiry that is decided on a case-by-case basis.  Below are some instances where courts have found a material and substantial change:

1. Change in Parent-Child Relationship

a.     Change in Conservatorship—A change in conservatorship may be a material and substantial change if it also involves altering the child’s primary residence and the level of care provided to the child by the parties.  Without these additional changes, a change in conservatorship alone may not be sufficient to establish a material and substantial change.

b.     Change in Paternity—A court’s determination that an obligor is not the biological father of a child may be a material and substantial change.  For instance,  a court decided a father could not modify his child-support payments to zero even though DNA tests proved he was not the biological father—he had to wait until the court overturned paternity judgment.

2. Change in Residence and Care Provided

a.     A change in physical residence may be a material and substantial change in circumstances if the parent who had possession of the child no longer provides the same level of care to the child as she did when she lived with the child.  For instance, a court decided that a daughter moving out of her mother’s home to live with her boyfriend was a substantial change but modification was denied. Alternatively, a court decided that a child moving out of mother’s home into father’s home was a substantial change and modification was granted.

3. Change in Child’s Needs

a.     A substantial increase in the necessary expenses of a child may be a material and substantial change in circumstances.  For instance, expenses for clothes, school supplies, and extracurricular activities increased as children became teenagers.

4. Change in Parent’s Financial Circumstances

a.     An increase or decrease in a parent’s financial ability to support a child may be a material and substantial change in circumstances.

b.     Parent’s Increase in Salary—A parent’s increase in salary may be a material and substantial change in circumstances.  For instance, a substantial change was found when father had no salary at the time of divorce, he was employed and given home to live in by employer at time of modification

i.     The increase in salary must be more than slight.

ii.     Although an increase in salary alone may constitute a material and substantial change, the court can also weigh the importance of the increase against other factors, such as the other spouse’s increase in salary.

iii.     If either of the parties are remarried, the salary of either the obligor’s or the obligee’s new spouse cannot be considered an increase in either party’s salary.

c.     Parent’s Decrease in Salary—A parent’s decrease in salary may be a material and substantial change in circumstances unless the decrease is a result of voluntary underemployment or voluntary unemployment.

i.     A temporary downward fluctuation in salary is insufficient to create a material and substantial change.

ii.     A decrease in a parent’s salary cannot support a modification of child support if that parent has other assets or sources of income to satisfy the support obligation (i.e. if parent could sell business and personal property to satisfy support obligation).

iii.     If either of the parties is remarried, the needs of either party’s new spouse or the needs of the new spouse’s dependents cannot be considered a decrease in either party’s salary.

d.     Birth of Another Child—The birth of another child may be a material and substantial change in circumstances if evidence of increased expenses can be shown.

i.     The fact that a father had another child, without more evidence was insufficient to establish substantial change.

ii.     The fact that a father had ample financial resources made the existence of an additional child not a substantial change.

iii.     Courts consider a father’s obligation to support the additional child as one factor among many when considering substantial change.

5. Change in Cost to Exercise Possession of and Access to Child

a.     A substantial increase in the cost of exercising rights to possession of and access to a child may be a material and substantial change in circumstances if the increase in cost is not caused by the party incurring it.

i.     For instance, a mother moved child 286 miles away, causing father to make lengthy and costly round-trips to exercise weekend possession.

6. Variance from Child-Support Guidelines

a.     A child-support order’s variance from the child support guidelines does not by itself establish a material and substantial change in circumstances.

b.     The court has discretion to consider the child-support guidelines when determining whether a material and substantial change in circumstances has occurred and whether to modify the order to substantially conform with the guidelines.