Divorcing couples often ask if they will later be able to modify the terms of their settlement agreement. The answer is not an easy one and is both yes and no, depending on what portion or portions of the order the person wants to modify.
Petition to Modify
Only the court can issue an order modifying the terms of a divorce decree. If you need a modification, you must file a petition with the court requesting a modification and detailing the terms of the modification. There must be some change in circumstances since the order was issued for the court to revisit and modify the original order.
Some common orders that people request to have modified include:
- Modification of child custody (conservatorship) orders.
- Modification of child visitation (possession and access) orders.
- Modification of child support order.
- Modification of spousal support order.
Even if you and the children’s other parent agree to the terms of the modification, you must file a petition for the court to issue a new order modifying the original order. The procedure is abbreviated, and an agreed modified order can be submitted; however, if there is no new signed order, it is not enforceable.
Requesting a Modification
The legal basis for requesting a modification is: 1) there has been a material and substantial change in circumstances since the original order; and 2) the requested modification is in the child’s best interest.
Change in circumstances. A material and substantial change in the circumstances of the children or the conservator since the original order is not always easy to prove. Examples of a change may include:
- The parent has moved which makes the current possession and access order unworkable.
- Children 12 years and older have expressed a desire for a different primary conservator.
- A parent paying child support has either had a reduction or increase in pay such that the support payment needs to be adjusted.
Every three years. The Family Code provides for a child support order to be reviewed every three years. These modification requests generally come from the Attorney General’s Office.
If an emergency requires an immediate change, the petitioner can request an immediate restraining order that will be put in place while the court considers the modification request.
You Cannot Modify the Property Division
One aspect of the settlement agreement that cannot be later modified under any circumstances is the agreement or court order about the property division.
For More Information About Divorce Contact an Experienced Dallas Family Law Attorney