Friday, January 27, 2023
Marcela Amaro
Staff Reporter (2022-2023)
Texas law allows a child support obligor¹ to request or petition a modification to the child support amount he or she is obligated to pay monthly. The Texas Family Code sets the guidelines based on the obligor’s monthly net resources or income.²
What Texas law says regarding child support modification.
Because an individual’s circumstances can change after the child support is set, Texas allows an obligor to petition a court to modify the child support amount. When requesting a modification, an obligor must establish one of the two circumstances listed below.
1. The circumstances of the child or a person affected by the child support order have materially and substantially changed since either:
a. the date the child support order was set, or
b. the date of a mediated or collaborative agreement³ from which the child support
amount was based.⁴
2. Alternately:
a. it has been three years since the child support obligation was set or last modified and
b. the monthly child support amount that would be set today, based on the guidelines⁵ would
be different by either 20% or $100.⁶
Who can file a petition to modify the child support order?
Any person affected by the child support order can file a petition to modify the child support order.⁷ Either parent or the person taking care of the child can file a modification. An obligor is considered a person affected by the child support order.The obligor can be either the mother or the father paying child support to the custodial parent.
For example, a father who is paying the mother child support for a minor child would be considered the obligor. In this scenario, the father can petition the court to reduce the amount owed or the mother can petition the court to increase the amount owed so long as he can establish the circumstances listed above.
What constitutes a material and substantial change?
In determining whether a modification in child-support payments is appropriate, the court must examine the circumstances of the child and parents at the time the child support was set,⁸ concerning the circumstances existing at the time modification of the prior order is sought.⁹ Because the court is given discretion to alter the amount of child support previously ordered, when the court determines that a material change has occurred, granting the modification is not an abuse of the trial court's discretion.
The court has typically found material and substantial change in circumstances in matters involving a person's financial situation,¹⁰ incarceration,¹¹ military duty,¹² custody of child,¹³ and change in lifestyle or standard of living.¹⁴
The court will not find material and substantial change under an anticipated circumstance. This refers to a circumstance contemplated at the time the child support was set. In other words, its eventuality is not a changed circumstance.¹⁵ Thus, an anticipated circumstance cannot be evidence of a material or substantial change of circumstances and cannot justify a modification in child support. For example, a court could find no change where the mother knew the child would get older, be attending school, and living with divorced parents, sometimes alternating days of the week. These circumstances were anticipated by parties and expressed in the divorce.¹⁶
Where and when can I file a petition to modify child support?
The petition must be filed with the court that set the original or last child support order.¹⁷
A request or petition to modify the child support amount can be filed if:
It has been three or more years since the last child support order was set or modified and the monthly amount of child support ordered differs by either 20% or $100 from the amount that would be awarded according to the child support guidelines today; or
A material and substantial change has occurred since the child support order was last set.¹⁸
It is important to note that in cases where the child support amount was not originally based on the guidelines, the court may still modify the order, but only if a material and substantial change has occurred.¹⁹
How should I go about handling a child support modification?
If you think you qualify for a child support modification or you are contesting a request to modify child support you are owed, it is a good idea to talk to a lawyer about your situation before filing anything with the court. A lawyer should be able to advise you on how to proceed and the best course of action for your case. The Texas Law Help site has resources on who to contact and more information about handling these types of circumstances.²⁰ Finally, it is important to note that regardless of the circumstance, the court will ultimately establish the child’s needs as the top priority in these cases.
¹ Obligor means a person required to make payments under the terms of a child support order. Tex. Fam. Code Ann. § 101.022. ² Tex. Fam. Code Ann. §154.062. ³ A mediated settlement agreement (MSA) and collaborative agreement are written contracts. Typically, an agreement within the parties to settle disputed claims. See, Wright v. Wright, 280 S.W.3d 901, 915 (Tex. App.—Eastland 2009, no pet.). ⁴ Tex. Fam. Code Ann. § 156.401(a)(1)(A)-(B). ⁵ Id. at §154.062. ⁶ Id. at §156.401(a)(2). ⁷ Interest of A.A.T., 583 S.W.3d 914, 921 (Tex. App.—El Paso 2019, no pet.). ⁸ Peterson v. Office of Atty. Gen., 990 S.W.2d 830, 832 (Tex. App. —Fort Worth 199, no pet.). ⁹ Trammel v. Trammel, 485 S.W.3d 571, 576 (Tex. App. — Houston [1st Dist.] Feb. 2, 2016). ¹⁰ In re C.H.C., 392 S.W.3d 347 (Tex. App. — Dallas, Feb. 6, 2013); In re N.T.P., 402 S.W.3d 13 (Tex. App. — San Antonio Dec. 31, 2012). ¹¹ Tex. Fam. Code Ann. §156.401(d). ¹² Tex. Fam. Code Ann. §153.702. ¹³ In re A.M.W., 313 S.W.3d 887 (Tex. App. Dallas 2010). ¹⁴ Tex. Fam. Code Ann. §156.405; See In re J.A.H., 311 S.W.3d 536 (Tex. App. — El Paso, Nov. 18, 2009). ¹⁵ In re. N.T.P., 402 S.W.3d 13 (Tex. App. — San Antonio, Dec. 31, 2012). ¹⁶ In re M.A.F., No. 12-08-00231-CV, 2010 WL 2178541, at *5 (Tex. App.—Tyler May 28, 2010, no pet.). ¹⁷ I need to change a custody, visitation, or support order (modification) Aug. 8, 2022, Texas Law Help https://texaslawhelp.org/guide/i-need-to-change-a-custody-visitation-or-support-order-modification/?tab=0&toggle=9. ¹⁸ Tex. Fam. Code Ann. § 156.401. ¹⁹ Id. at § 156.401(a-1). ²⁰ I need to change a custody, visitation, or support order (modification) Aug. 8, 2022, Texas Law Help https://texaslawhelp.org/guide/i-need-to-change-a-custody-visitation-or-support-order-modification/?tab=0&toggle=9.
