Legal Insight from Barrows Firm: New Year, New Child Support Modification Case

A New Year, A New Child Support Modification Case When There is a Substantial Change in Circumstances

2023 is expected by many to be a year of change and new pursuits, and for Southlake parents with child support, the new year may be time for anew child support modification case. Child support orders are fixed in the amount and duration of payments, and it is necessary to file a new case to get a new order if there has been a substantial change in circumstances, making your case eligible for modification and new support and withholding orders.

The Logistics of Paying Child Support and Modifying the Amounts with Material and Substantial Changes in Circumstances

In Southlake and in Texas as a whole, initial child support orders are part of the Temporary Orders issued shortly after the divorce or custody case begins, and those are the first court orders that direct who goes where and who pays for what, including temporary child support. When the Court orders a child support obligor to make child support payments for a child, originally, or in a modification, there is usually a withholding order by the Court, directed to the payroll department of an employer to withhold the money to be collected and processed for distribution by the Texas Attorney General Child Support Division. There are many ways to pay child support in addition to wage withholding, as indicated on the Child Support Division’s website.

The parent or guardian receiving child support funds can do so through direct deposit to their bank or a Texas Payment Card issued by the Child Support Division. Depending on the Court’s order, the payments are received bi-weekly or monthly, in a lump sum.

To qualify for a modification to Court ordered child support, the petitioner filing the new lawsuit requesting the modification has the burden of proving that there has been a material and substantial change in circumstances, required to qualify for a modification.

Child Support Guidelines and Statutory Increases

When the Court originally calculates child support and subsequently calculates a new child support amount in a child support modification case, the Texas Family Code’s child support guidelines are applied in most cases, unless there is a trial otherwise or the parties reach an agreement. The percentages of income used for support would only change if there are more or fewer children to be supported.

What may be different are the current income of the support obligor, and a change in the child support cap, the maximum amount of support to be ordered. The calculation process for child support, determines the net resources available for child support payments, considering earnings less standard deductions.

Maximum Amount of Child Support Obligation

Highly compensated child support obligors are liable for child support payments up and to a maximum ceiling amount, and that number is adjusted during Texas legislative sessions every six years, tracking inflation rates. In 2013 the maximum rate was capped at $8,550 monthly, which increased from $7,500. Next, in 2019, the adopted increased maximum rate became $9,220.

With the percentage of a payment obligation, there can be rare circumstances where Courts have ordered 20 percent plus an additional 5percent for each additional child. Depending on what is going on in your life and your children’s circumstances, the obligations can be addressed in your new child support modification case.

Child Support Modifications are New Lawsuits

Like the original lawsuit needed to be reviewed, signed, filed, and served upon the other party, so does a new child support modification case because it is a new lawsuit with the same people, but seeking a new child support order. The parties exchange discovery and have the opportunity to examine and exchange financial information and other relevant records and testimony in hearings and at trial. And while many modifications are settled by agreement of the parties, others have trials to determine new amounts. Be prepared, knowing this is more than just a casual trip to the courthouse.

Note the court with continuing, exclusive jurisdiction may modify an order that provides for child support, and it is not possible to appear before a new Court.

Eligibility for a Suit to Modify Child Support, a Material and Substantial Change in Circumstances

The grounds for modification of child support require either the proving of a material and substantial change in circumstances of the child or the person affectedby the child support order or when three years have passed and the child support award differs by 20 percent or $100 from the amount that would be awarded under the child support guidelines.

What some believe qualifies for an increase in support, may not be qualifying factors, such as the obligor having been voluntarily paying more than the required amount. Likewise, the income of a new spouse or the change in the standard of living of the obligor does not trigger an increase in the obligor’s child support obligation.

A New Child Support Modification of an Order Issued by Another State

Many who moved to Texas have child support orders issued by other states. Unless both parties and the child reside in Texas, a Texas court may not have jurisdiction to enter a new child support order. If everyone is here in Texas, the parties may petition a Texas Court to register that other state’s order here in Texas.

A Change in Physical Possession and a New Child Support Modification

The order for support for a child can be modified by a new order if the person has possession of the child for at least six months of the year. This may happen where the parent who is a sole-managing conservator or the joint-managing conservator with the right to choose possession, voluntarily relinquishes primary care and possession of the child, is sentenced for 90 days or more in jail, or otherwise relinquishes the care of the child in other circumstances.