Can Modifications take place after a Judgement in a Divorce Case?

A Judgment is a final decision by the court and a modification is a request to make changes to the judgment. A judgment is modifiable as long as the requesting party can prove that there have been substantial changes in the factors considered by the court when the judgment was made.

Modifications as the property division in a divorce are generally not allowed. Once marital property and debt are divided in a divorce, which in this portion of a judgment is final. For this reason, property division must be thoroughly addressed in a divorce.  After a divorce or paternity matter ends, one or both parties may want to modify the judgment somehow. In a general sense, modifications can occur as to child custody, child support and spousal support, which is still referred to as alimony in some states.

Common questions that parties have on modification of a judgement are: “Do parties have to agree to a modification for it to take place as to custody, child support or spousal support?” or “can a judge order a modification even if one party does not want it?”  The reality is a judge can enter a modification even if both parties do not agree to it. To prevail on a modification, one party first has to file a motion to modify.

The motion or petition is then served on the other party. The responding party can contest the modification. If that takes place, contested litigation then takes place. In some ways, this can feel for parties like re-living the original divorce or paternity case.

In Texas, a party has to show a material change in circumstances for either a child or a party to justify the modification. Parties can generally file a modification at any point. However, if a party wants to change who has the designation of the “primary” parent within a year, they will need to be sure to include an affidavit showing why the change is necessary due to an endangerment to the children.

As to child support and spousal support, the change of circumstance might involve an increase or decrease in one or both parties’ income. It might involve a change in the expenses of one or both of the parties. In terms of spousal support, the party receiving spousal support may have gotten remarried. Perhaps there is not a remarriage, but maybe the party receiving child support is cohabiting with another individual in a romantic sense.

In terms of child custody, the possibilities are endless. A party might end up relocating far away. It could involve the wishes of a child. It might entail the educational needs of the children, the fitness of the parents or a litany of other reasons. Contested custody modifications can often be some of the more acrimonious cases in family law.

Many also wonder how a judge will decide whether to modify a judgment if both parties do not agree. Ultimately, a trial or evidentiary hearing will need to take place where witnesses testify and evidence is submitted. A trial or evidentiary hearing could take a few hours, even an entire day and sometimes it can go on for days.

After the trial or evidentiary hearing, the judge then has to decide whether there is a sufficient basis to modify the judgment. In some cases, the judge may decide to modify the judgment. But in other cases, they may not. Either way, most judges issue a written judgment explaining whether there was a modification and their findings of fact and conclusions of law.

Having an attorney with the resources and knowledge to give you the best representation is vital to your interest and the interest of your family.  You also want to make sure they will exhaust all avenues and be willing to research, pursue and implement strategies to provide the best possible outcome.

 

Rob McAngus, Partner with Verner Brumley Parker, P.C., is Board Certified in family Law and his practice is devoted primarily to family law, including high conflict divorce, custody cases, and complex property issues. In addition to being selected on the Board of Directors for the Family Law Section of the Dallas Bar Association; he values your priorities as a parent and works with you to achieve the goals that will help transition your family to a new normal.  As both an adopted child and a member of a blended family, Rob can provide a unique perspective in the practice of family law.

 

Rob has been recognized in Super Lawyers as a Rising Star in 2016 through 2020, Best Lawyers, and recently The National Advocates recognized Rob as one of the Top 40 Under 40.  He can be reached by calling 214.526.5234 or email at rmcangus@vernerbrumley.com.  Mr. McAngus received his bachelor’s degree cum laude and master’s degree from Baylor University and graduated cum laude from the Dedman School of Law at Southern Methodist University.