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A modification suit is when one of the provisions of a prior final order needs to be changed, such as conservatorship, possession and access, determination of residence, or child support. The court cannot modify the property division of an underlying order.
Modification of Conservatorship, Possession and Access, or Determination of Residence
Texas law allows modification of the underlying order, such as the divorce decrees, suit affecting the parent-child relationship order (SAPCR), or modification order if the modification would be in the best interest of the child AND both parties mutually agree to alter the terms of the order; the child is at least 12 years of age and has expressed to the court in chambers the name of the person who is the child's preference of which parent will have the exclusive right to designate the primary residence of the child; OR if the primary parent voluntarily relinquished the primary care and possession of the child to another person or at least six months.
If the request to modify the order is filed within one year of the prior order, the petition must include a sworn affidavit stating that the child's present environment may endanger the child's physical health or significantly impair the child's emotional development, or that the primary parent voluntarily relinquished the primary care and possession of the child to another person or at least six months.
Having an adequate basis for a modification action is important because if the judge finds a party frivolously filed the modification action, he or she shall award attorney fees to the other party.
Among other reasons, modification of the parenting plan would be necessary in the event of conviction by one party for child abuse or domestic violation; a drug or alcohol addiction of a parent; a child's desire to live with the other parent; desire of the custodial parent to change the domicile restriction; military duty of one parent; release from incarceration if the child support was abated, reduced or suspended during the time the parent was incarcerated; or if the underlying order is no longer workable or in the child's best interest.
Modification of Child Support
Modification of child support, including health care or dental care coverage, can be made if the circumstances of the child or a person affected by the order have materially and substantially changed, OR if it has been 3 years and the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. For example, if a person who is ordered to pay child support is laid off, it may be necessary to decrease the child support obligation. Likewise, if a parent obtains a job making significantly more than the amount on which the child support was based, an increase may be necessary.
See the child support page for the Texas child support guidelines.
What are some reasons to modify a divorce or SAPCR order?
If the problem with your case is the lack of co-parenting, not receiving child support, you are not being permitted visitation, or some other issue already outlined in your court order, you may need an enforcement rather than a modification. See our enforcement page for more information.