Modifications to a Divorce Decree

BY MALA SHARMA

Either party in a divorce decree may seek to change child support or custody in a prior decree. The requirement to modify a decree is to show a material, substantial, and continuing change of circumstances. The burden to prove this test is upon the person who desires to change the decree. Circumstances that would necessitate a modification include moving to another state, significant changes in income, and problems relating to the care of the children. Modifications of final decrees of divorce are not simple and may become very difficult challenges to accomplish. It is best to have child support and custody confirmed in the final decree from the beginning. However, although more difficult to change after, it is a challenge to pursue. It is highly recommended to hire a qualified attorney to handle the modification of the decree.

Custody terms are binding, yes, but it is still possible to petition for a change of the final decree of divorce. In many states and in Texas, this is considered a “modification” of the final decree of divorce. The determining factor that must be proven by the challenging party or the “movant” is a ‘material and substantial change’ in circumstances since the date of the prior order. Even if there is a change in income or other circumstance which is grounds for modifying a petition, a Court will not order the change unless there is a showing of a substantial or significant change in circumstances. Usually, this is to not allow a repetition of the first trial or to subject all parties to the Court system once again. States generally require six months after the decree is signed by the judge before a party may petition for a modification of the decree. Even more so, some Courts make the burden of proof on the movant much higher if the petition is filed within only one year of the prior decree.

Once the petition is filed, the movant’s behavior as a parent is extremely crucial to winning this fight and is under scrutiny. The movant must strive to be the best parent which includes: taking much interest and being active in the child(ren’s) school activities, school projects, after-school activities, sports, family and friend activities, supportive and thoughtful of college goals and other future goals, being on time with any child support payments, not missing any designated custody and visitation periods, getting the child(ren) to school and other activities on time, etc. All such efforts should be heavily documented through pictures, written records, and witnesses. This model behavior is critical in order to increase the possibility of achieving the modification. A Court will use this behavior to make a determination of the modification. Additionally, if the movant does not use this model behavior as solid proof for the Court, the other parent will use any other behavior to prove their argument against you. Thus, if the movant does not strive to carry this model behavior, it will damage the efforts. It is critical to continue to have model behavior and document every step. It is best to seek a qualified attorney to handle modifications of divorce decrees.

About the Author: Mala Sharma has been practicing family law and personal injury with her family at the Law Offices of Sharma & Associates, founded in 1997. Mala is Board member of the Houston Trial Lawyers Association, chair of the American Bar Association GP Solo and GP Solo YLD division, President Emeritus of the Houston Northwest Bar Association, and prior board member of the South Asian Bar Association. She is also a member of the Houston Bar Association. Mala has also been selected as 10 Best Attorneys by the American Institute of Personal Injury Attorneys, Top 40 Under 40 by the National Trial Lawyers, and also selected Texas Rising Star by Super Lawyers.

This material is available for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. If you require advice or assistance, you may contact her at office number 281-893-8644 or by email at mala@sharmalaws.net to schedule a free consultation to discuss your case.

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