practice areas

Grounds for Divorce

Texas is a “no fault” state, which means that a spouse is not required to prove fault in order to obtain a divorce. Most spouses are divorced on the ground of “insupportability,” which means that the spouses experience conflict to an extent that there is no reasonable expectation of reconciliation. Fault grounds do exist in Texas; however, and a spouse may allege such grounds as cruelty, adultery, felony conviction, abandonment, living apart (for at least 3 years), and confinement in a mental institution. Whether a party is at fault in the marriage dissolution may be a factor considered by the court in dividing the marital estate.

Residency Requirement

One of the divorcing spouses must meet the residency requirements for obtaining a divorce in Texas, including that one of the spouses must be domiciled in this state for the preceding 6-month period, as well as a resident of the county where the divorce is filed for the preceding 90-day period.

Standing Orders in Texas

Most Texas counties in the Dallas/Fort Worth and surrounding areas have adopted a standing order concerning children, pets, property, and conduct of the spouses, which is effective immediately upon filing the divorce petition. A copy of the Standing Order is served on the other spouse with the divorce petition. Both spouses should thoroughly read through the Standing Order effective in their county to understand what is allowed and what is prohibited during the pendency of a divorce proceeding or a case affecting the parent-child relationship. The purpose of a standing order is to prohibit spouses from taking certain actions, including moving or hiding marital assets, harming or threatening to harm the other spouse or the children, removing children from the State, or withdrawing them from school, without a court order specifically allowing otherwise. The Standing Order can be found on the district clerk’s website for each county. Dallas, Collin, Denton, Rockwall, Kaufman, and Ellis Counties have adopted standing orders. To date, Tarrant County has not.

The Divorce Process

Divorce is a step-by-step process that your attorney can describe in more detail upon learning the facts of your case. In general, divorce entails the following steps:

(1) Filing the Original Petition for Divorce and getting the other spouse served with the petition and citation, or having the other spouse sign a Waiver of Service, if agreeable.

(2) Establishing temporary orders, either by agreement or after a hearing, regarding the use of property, payment of marital expenses, spousal maintenance, and child support, parenting time, and other child-related matters that will remain in effect during the pendency of the case until a divorce decree is signed by the court or until further order of the court.

(3) Fully disclosing and exchanging all information relating to assets and liabilities of the spouses, whether community or separate property, and placing a value on those items. This step may entail formal discovery if there is any question about whether one spouse is fully disclosing this information. This step may also necessitate hiring financial experts for valuation purposes or to trace and confirm a spouse’s claim of separate property.

(4) Attempting informal negotiations or attending mediation to try resolving the case without court involvement.

(5) Attending trial if the case is not otherwise resolved by agreement.

(6) Drafting and presenting to the court a Final Decree of Divorce.

There may be more or fewer steps, depending upon the specific facts of your case.

60-Day Waiting Period for Divorce

Except under limited circumstances relating to a conviction or finding against one spouse of family violence committed during the marriage, a court may not grant a divorce before the 60th day after the date the case was filed.

Divorce can be complicated and emotionally taxing. Hiring a divorce lawyer can provide you with peace of mind knowing that your rights are protected, and the best interest of your children is a priority.

Mandatory Disclosure of Assets and Debts

Both spouses are required to disclose all assets and debts, whether those assets and debts are characterized as community or separate property, as explained below. If one spouse suspects that the other spouse is not being fully transparent, it may be necessary to use discovery tools, such as subpoenas, for obtaining records from financial institutions or a spouse’s business. Refusing to cooperate with the disclosure requirement may result in sanctions against a spouse or in the harmed spouse receiving a disproportionate share of the community estate.

“Just and Right” Division

Under the Texas Family Code, the court must order a division of the community estate in a manner that the court deems just and right, considering the rights of each spouse and of any children of the marriage. The term “just and right” does not necessarily mean the spouses will receive a 50/50 division. There are several factors the court may consider when ordering a just and right division, including each spouse’s incomes and earning capacities and any disparity between the two, benefits the spouse not at fault in the dissolution of the marriage would have derived from continuation of the marriage, business opportunities of the spouses, each spouse’s level of education, health and physical conditions of the spouses, ages of the spouses, financial obligations of each spouse, the size of each spouse’s separate property estate, special needs of any children of the marriage, reasonable attorneys’ fees paid and owed by the spouses in the divorce case, and whether and to what extent one spouse wasted marital assets on gambling, drugs, alcohol, fraud, etc. The court’s consideration of any of these factors may lead to a disproportionate division of the marital estate in favor of a harmed spouse.

Community Property Assets

Texas is a “community property” state. Community property consists of the property, other than a spouse’s separate property, acquired by either spouse during the marriage. However, under the law, courts presume that all property possessed by either spouse at the time of divorce is community property, subject to division by the court. A spouse claiming any property is separate must prove that property is owned separately by that spouse by clear and convincing evidence. Property of the community estate subject to division by the court may include your home (or home’s equity), land, financial accounts, including retirement accounts, vehicles, business interests, household furnishings, and personal belongings, including electronic equipment, jewelry, and sporting goods.

Separate Property Assets

Under the Texas Constitution and the Family Code, a spouse’s separate property may consist of any of the following property:

(1) Property owned or claimed by the spouse before the marriage.

(2) Property acquired by the spouse during the marriage by gift (including gifts between the spouses), devise or descent (inherited).

(3) The recovery for personal injuries sustained by the spouse during the marriage, except for any recovery received for loss of earning capacity and loss of services of the spouse and for medical expenses related to the injury during the marriage.

Depending on the circumstances, it may be necessary to hire an expert to trace a spouse’s separate property claim.

Division of Debts

Similar to assets, debts should be identified as community or separate property. The court has authority to divide community debts under the same “just and right” standard applied to community assets. However, divorce courts have no authority to interfere with the rights of a third-party creditor to collect from either of the spouses. This means that, even if the court assigns a community property debt in the divorce decree as the sole responsibility of one spouse, if both spouses were originally liable on the debt, a creditor can still attempt to collect from the other spouse if the responsible spouse fails to pay the debt or later files bankruptcy.

You should talk to your attorney about including indemnity language in the decree, which entitles the harmed spouse to compensation or reimbursement from the responsible spouse in the event the harmed spouse is required to pay the debt to avoid a judgment or damage to the harmed spouse’s credit.

Some of the most common community liabilities that are subject to division by the court include home and vehicle notes, income and property taxes, credit card debts, personal loans, and attorneys’ fees.

Child custody and parenting time may be determined as part of a divorce proceeding or in a separate Suit Affecting the Parent-Child Relationship. In determining custody and parenting time in Texas, the court’s priorities include the safety and welfare of the children, the children’s physical health and emotional development, and what orders will promote the children’s overall best interests.

Conservatorship

It is important to understand that the court will presume that both parents should be appointed as joint managing conservators of the children, unless there is a finding of family violence against one or both parents, or the court finds that appointing both parents as joint managing conservators would not be in the children’s best interest. Under those circumstances, the court may appoint one parent as managing conservator and the other parent as possessory conservator. A possessory conservator has limited decision-making rights relating to the designation of the children’s primary residence as well as educational, medical, and psychological decisions, among others, and may also have limitations placed on parenting time. Also note that the appointment by the court of the parents as joint managing conservators does not require the court to provide each parent with equal parenting time.

The Custody Case Process

Generally, custody cases entail the following steps:

(1) The parent seeking custody, parenting time, to establish certain rights and duties among the parents, and for child support files an Original Petition in Suit Affecting the Parent-Child Relationship (SAPCR) and serves the other parent with the petition and citation.

(2) It is typically advisable to establish temporary orders that will remain in place during the pendency of the case until a final order is signed by the court. Temporary orders should address (a) where the children’s primary residence will be, and whether it will be restricted to a specific geographic area (typically to the county and contiguous counties of a parent’s residence), (b) which parent will have the exclusive right to establish the children’s primary residence, (c) what rights the parents will have, including decision-making authority relating to the children’s education, medical, dental, and psychological/psychiatric treatments, and (d) which parent will be required to pay child support and provide medical and dental insurance for the children. Temporary orders should also establish a parenting time schedule, referred to in the Texas Family Code as a “possession order.” The parties may agree to temporary orders, or the orders can be established by the court after a hearing, if parents are unable to agree.

(3) Both parents are required to fully disclose and exchange all information and documentation that is relevant to the request for custody, parenting time, authority to make decisions on behalf of the children, and child support. Almost everything is relevant in a Suit Affecting the Parent-Child Relationship. Refusing to cooperate with the disclosure requirement may result in sanctions against a parent, or in the court disallowing that parent to present evidence not previously provided to the other parent. A Request for Production of Documents, Written Interrogatories, and Depositions are among some of the discovery tools that can be utilized to obtain information necessary to support a parent’s case.

(4) Depending on how contentious the case is, the court may order (or the parents can agree) that a custody evaluation be performed by a mental health professional into the circumstances and conditions of the children and the parents. The custody evaluator will prepare a report which will outline the custody evaluator’s investigation process, as well as his or her recommendations for primary custody, decision-making authority, and parenting time. Custody evaluations can be an expensive process for both parents and are therefore recommended only if absolutely necessary. It is also important to know that judges are not required to, and often do not, follow the recommendations outlined in the custody evaluation.

(5) Attend mediation. Most courts require that the parents attempt to settle the case before going to trial, and most cases do settle at mediation.

(6) Prepare for and attend trial if the case fails to settle at mediation.

(7) Prepare a final order consistent with the Mediated Settlement Agreement, or the court’s ruling at trial, whichever is applicable. The final order will address all of the same matters discussed under step (2) involving temporary orders, except those provisions will be final. A final SAPCR order can be modified under certain conditions involving a material and substantial change in circumstances, as discussed in more detail under the “Enforcement and Modification of Current Orders” tab.

Every case is different, and your case may have more or fewer steps involved.

Standing Orders in Texas

Most Texas counties in the Dallas/Fort Worth and surrounding areas have adopted a standing order concerning children, pets, property, and conduct of the parents, which is effective immediately upon filing a petition for divorce or SAPCR. A copy of the Standing Order is served on the other parent with the petition. Both parents should thoroughly read through the Standing Order effective in their county to understand what is allowed and what is prohibited during the pendency of a case affecting the parent-child relationship. The purpose of a standing order is to prohibit either parent from taking certain actions, including harming or threatening to harm the other parent or the children, removing children from the State, withdrawing the children from school, or in any manner disturbing the status quo relating to the children, without a court order specifically allowing otherwise. The Standing Order can be found on the district clerk’s website for each county. Dallas, Collin, Denton, Rockwall, Kaufman, and Ellis Counties have adopted standing orders. To date, Tarrant County has not.

Parenting Time and the Standard Possession Order

Unless a parent provides the court with evidence to the contrary, the court will presume that the standard possession order provides reasonable minimum possession of the children for the parents and is in the children’s best interest. However, no family is exactly alike, and special family dynamics may call for a uniquely tailored possession schedule, which can usually be accomplished by agreement between the parents. It is also important to know that, even if the court orders the parents to exercise the standard possession order, the order will always state that the parents “may have possession of the child[ren] at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child[ren] under the terms set out in the standard possession order.” It is advisable to get the agreement to deviate from the standard possession order in writing, whether my email or text. You should also talk to your attorney about the potential downfall of habitually straying from the possession schedule outlined in your order.

In general, under the standard possession order for parents who reside less than 100 miles from each other, the parent not awarded the right to establish the children’s primary residence will have parenting time with the children on the first, third, and fifth weekends of each month (as dictated by the Friday preceding the weekend), whether or not the children are in school, as well as on each Thursday evening during the regular school term. Thursday parenting time is not exercised under the standard possession order during the summer months when children are not in school. The start and end times for the weekend parenting times may begin and end when school starts and ends or may begin at 6 p.m. on Fridays and end at 6 p.m. on Sundays, depending on what the court orders. Similarly, Thursday parenting times may be overnight and begin and end when school starts and ends or may be from 6 p.m. until 8 p.m., depending on what the court orders. The parents can always agree on different terms.

Beginning on September 1, 2021, parents who live within 50 miles of each other should include the beginning and ending times for weekend and Thursday possession periods that correlate with the start and end times of the children’s schools, rather than the 6 p.m. and 8 p.m. start and end times, unless the court specifically orders otherwise. If your order does not state this, you should talk to your attorney about the possibility of modifying your possession order, as you may be entitled to more time with your children under this new rule.

Parents who reside more than 100 miles apart will either exercise the regular first, third, and fifth weekend periods of possession, or the parent who does not have the right to establish the children’s primary residence may provide the other parent with 90-days’ notice to elect to exercise parenting time on not more than one weekend per month, with 14 days’ advanced notice preceding the chosen weekend each month.

If parents live less than 100 miles apart, the parents will alternate spring break parenting time. If parents reside more than 100 miles apart, the parent who does not have the right to establish the children’s primary residence will have parenting time with the children every spring break.

Each parent will also have specifically designated holiday parenting times for Thanksgiving, Christmas, Mother’s Day, and Father’s Day, as well as extended summer possession. The spring break, holiday, and summer parenting times will always supersede the weekend and Thursday possession periods.

Parenting Time for Children Under 3 Years of Age

The court will take several factors under consideration when rendering a parenting schedule for children under 3 years of age, including the following:

(1) the caregiving provided to the child before and during the current case;

(2) the effect on the child that may result from separation from either parent;

(3) the availability of the parents as caregivers and the willingness of the parents to personally care for the child;

(4) the physical, medical, behavioral, and developmental needs of the child;

(5) the physical, medical, emotional, economic, and social conditions of the parents;

(6) the impact and influence of individuals other than the parents, who will be present during periods of possession;

(7) the presence of siblings during periods of possession;

(8) the child’s need to develop healthy attachments to both parents;

(9) the child’s need for continuity of routine;

(10) the location and proximity of the residences of the parents;

(11) the need for a temporary possession schedule that incrementally shifts to the standard possession order or other order the court deems appropriate for the child, based on the:

(a) age of the child; and

(b) minimal or inconsistent contact with the child by a parent;

(12) the ability of the parents to share in the responsibilities, rights, and duties of parenting; and

(13) any other evidence of the best interest of the child.

Determining custody and parenting time can be a complicated process, especially if it is necessary to attend a hearing on these matters. Contact the Law Offices of Peggy Richard, PLLC to find out how we can simplify that process, protect your rights, prioritize your children’s best interest, and prepare a thorough and enforceable order detailing the important issues that will direct your family moving forward.

Who Can Initiate a Child Support Case?

A child support case can be initiated by (1) a parent, (2) a nonparent who has physical custody or guardianship of the child under a court order, (3) the child if the child is 18 years of age or older, does not have a mental disability, and is determined by the court to be capable of managing the child’s financial affairs, or (4) the Child Support Division of the Office of the Attorney General (OAG).

Calculation of Child Support

The court may order either or both parents to provide child support and medical and dental insurance, typically until the child is 18 years of age or until the child graduates from high school, whichever is later. Child support in Texas is calculated based on established guidelines, unless a parent can overcome the presumption that the established guidelines are in the best interest of the child. The parent responsible for child support is referred to as the “Obligor,” and the parent receiving the child support payments is referred to as the “Obligee.” The following guidelines apply:

Standard Calculation- Based on Monthly Net Resources* of the Obligor

1 Child 20% of Obligor’s Net Resources

2 Children 25% of Obligor’s Net Resources

3 Children 30% of Obligor’s Net Resources

4 Children 35% of Obligor’s Net Resources

5 Children 40% of Obligor’s Net Resources

6+ Children Not less than the amount for 5 children

Low Income Calculation (Obligor’s Monthly Net Resources* are Less than $1,000)

1 Child 15% of Obligor’s Net Resources

2 Children 20% of Obligor’s Net Resources

3 Children 25% of Obligor’s Net Resources

4 Children 30% of Obligor’s Net Resources

5 Children 35% of Obligor’s Net Resources

6+ Children Not less than the amount for 5 children

* “Monthly Net Resources” is defined in the Texas Family Code as gross monthly resources, including 100% of all wage and salary income and other compensation for personal services (including commission, overtime pay, tips, and bonuses), interest, dividends, and royalty income, self-employment income, net rental income, and all other income such as severance pay, retirement benefits, trust income, annuities, and the like (talk to your attorney for a complete list), minus social security taxes, federal income tax withholding for a single person claiming one personal exemption and the standard deduction, state income taxes, union dues, expenses for the cost of health insurance, dental insurance, or cash medical support for the obligor’s children in the present case, and nondiscretionary retirement plan contributions if the obligor does not pay social security taxes. “Net Monthly Resources” specifically excludes the obligor’s spouse’s income, return of principal or capital, accounts receivable, benefits paid in accordance with the Temporary Assistance for Needy Families program or another federal public assistance program, or payments for foster care of a child.

Does Texas Place a Cap on Child Support?

Yes. Effective as of September 1, 2019, the guidelines for calculating child support apply to situations in which the obligor’s Monthly Net Resources are not greater than $9,200. The “cap” is recalculated and adjusted every six years to reflect inflation. If you “cap out” on monthly net resources, your child support will likely be calculated as follows:

“Cap” Calculation- Based on Monthly Net Resources of $9,200+

1 Child 20% of Obligor’s Net Resources, or $1,840

2 Children 25% of Obligor’s Net Resources, or $2,300

3 Children 30% of Obligor’s Net Resources, or $2,760

4 Children 35% of Obligor’s Net Resources, or $3,220

5 Children 40% of Obligor’s Net Resources, or $3,680

6+ Children Not less than the amount for 5 children, or at least $3,680

The amount calculated may be reduced if you are paying child support for children in multiple households as discussed below. It is important to know that the court may order additional amounts of child support as appropriate, depending on the income of the parents and the proven needs of the children; however, a parent would need to put evidence before the court to overcome the presumption that child support should be calculated based on application of the established guidelines, including the “cap.”

Child Support Reduction for Children in Multiple Households

The obligor’s monthly child support may be reduced if the obligor is providing support for children in more than one household. The calculation may be further reduced if the obligor’s Monthly Net Resources are below $1,000.

Evidence of Income for Child Support Calculation

At a hearing to establish child support, parents must provide the court, the other parent or attorney, and the OAG, if applicable, with information sufficient to accurately identify a parent’s net resources and ability to pay child support, including copies of income tax returns for the past two years, a financial statement, and current pay stubs.

Employer’s Order to Withhold Earnings for Child Support

Once child support is calculated, the court will sign an Income Withholding Order, which will be sent to the obligor’s employer with instructions on withholding from earnings for child support and medical and dental support. Those funds will be sent to the State Disbursement Unit where an account will be set up to keep a record of all payments due and paid. Once credit is processed to the account, withheld funds will be sent to the obligee. There is often a 3 to 4 week delay between withholding the first child support payment and receipt of that payment by the obligee. This is due to the time required for the State Disbursement Unit to receive the order for payments, set up the account, and process the payment.

Presumption of Minimum Wage Earnings for Unemployed Obligors

In the absence of evidence of an obligor’s resources for child support, the court will presume that the obligor has income equal to the federal minimum wage for a 40-hour week (full-time job). The court will then apply the guideline calculation to that amount for determining the amount of child support to be paid. If the court finds that an obligor is voluntarily unemployed or voluntarily underemployed, the court may apply the child support guidelines to the earning potential of the obligor. In other words, unemployment is not an excuse to avoid paying child support.

In addition to imputing income to an underemployed or unemployed obligor, the court may also consider an obligor’s relevant background circumstances, including the obligor’s assets, residence, salary history, job skills, level of education, literacy, age, health, criminal history, barriers to employment, record of seeking work, job opportunities in the obligor’s community, the prevailing wage in the obligor’s community, and whether there are employers willing to hire the obligor. Incarceration will not be considered as intentional under employment or unemployment when calculating a child support obligation.

Retroactive Child Support

The court may order a parent to pay retroactive child support. In ordering retroactive child support, the court will consider the Net Monthly Resources of the obligor during the relevant time period, and whether:

(1) the mother of the child made any previous attempts to notify the obligor of his paternity or probable paternity;

(2) the obligor had knowledge of his paternity or probable paternity;

(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor’s family; and

(4) the obligor has provided actual support or paid for other necessaries of the child before the filing of the case.

Typically, the court will limit the award of retroactive child support to not more than the amount that would have been due for the four years preceding the date the case was filed; however, a parent can put evidence before the court to overcome that limitation.

Failure to Pay Child Support Not a Valid Reason to Withhold Possession

A parent’s failure to pay child support is not a valid excuse for the other parent to deny possession time under a court order. The two issues do not correlate, and the court will likely give the parent who was denied possession make up time.

Enforcement of Child Support or Obligation to Provide Medical and Dental Insurance

Failure to pay child support or to provide medical or dental insurance as ordered can have serious consequences, including:

(1) criminal or civil contempt and incarceration;

(2) monetary fines for each failure to make an ordered payment;

(3) community supervision;

(4) judgment for arrears, court costs, and reasonable attorney’s fees, including interest;

(5) child support lien, foreclosure on property, and levy of financial accounts;

(6) license suspension for the following licenses: driver’s, hunting, fishing, medical, legal, real estate, plumbers, private security, certified public accountant, engineer, psychologist, nurse, barber, social worker, Texas Alcoholic Beverage Commission, or other similar license issued by a licensing authority; and

(7) Passport denial.

Additionally, an obligor who is ordered to provide health insurance or dental insurance or to pay the other parent additional child support for those costs who fails to do so is liable for (1) necessary medical expenses and dental expenses of the child, without regard to whether the expenses would have been paid if health insurance or dental insurance had been provided; and (2) the cost of health insurance premiums, dental insurance premiums, or contributions, if any, paid on behalf of the child.

If you have experienced a loss of income, don’t wait until you are behind on child support payments to modify your support obligation. You may be eligible to lower your child support obligation, as discuss in more detail below.

Modification of Child Support Obligation

The court may modify an order relating to child support and medical and dental insurance if (1) the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of the date of the current order’s rendition, or the date of the signing of a mediated settlement agreement on which the current order is based, or (2) it has been 3 years since the order was rendered or last modified and the monthly amount of child support under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. An order may be modified to provide for medical and dental support without a showing of a material and substantial change in circumstances. Loss of income likely qualifies as a material and substantial change in circumstances for requesting that the child support obligation be reduced.

A party to a family law order, including a divorce decree, an order in Suit Affecting the Parent-Child Relationship (SAPCR), and a temporary order, including a temporary restraining order, temporary injunction, and a county’s Standing Order, is entitled to request that the court enforce ANY provision of the order. An order may be enforced by contempt, if appropriate. A party held in contempt may be fined, jailed, or both. Additionally, a party found to be out of compliance with an order may be ordered to pay the enforcing party’s reasonable attorney’s fees and costs incurred in enforcing the order.

In addition to your right to enforce your current order, you may be entitled to modify your order if there has been a material and substantial change in circumstances, and if the court determines that it is in the best interest of any children involved.

Enforcement of Child Support or Obligation to Provide Medical and Dental Insurance

Failure to pay child support or to provide medical or dental insurance as ordered can have serious consequences, including:

(1) criminal or civil contempt and incarceration;

(2) monetary fines for each failure to make an ordered payment;

(3) community supervision;

(4) judgment for arrears, court costs, and reasonable attorney’s fees, including interest;

(5) child support lien, foreclosure on property, and levy of financial accounts;

(6) license suspension for the following licenses: driver’s, hunting, fishing, medical, legal, real estate, plumbers, private security, certified public accountant, engineer, psychologist, nurse, barber, social worker, Texas Alcoholic Beverage Commission, or other similar license issued by a licensing authority; and

(7) Passport denial.

Additionally, an obligor who is ordered to provide health insurance or dental insurance or to pay the other parent additional child support for those costs who fails to do so is liable for (1) necessary medical expenses and dental expenses of the child, without regard to whether the expenses would have been paid if health insurance or dental insurance had been provided; and (2) the cost of health insurance premiums, dental insurance premiums, or contributions, if any, paid on behalf of the child.

If you have experienced a loss of income, don’t wait until you are behind on child support payments to modify your support obligation. You may be eligible to lower your child support obligation, as discuss in more detail below.

Failure to Pay Child Support Not a Valid Reason to Withhold Possession

A parent’s failure to pay child support is not a valid excuse for the other parent to deny possession time under a court order. The two issues do not correlate under the law, and the court will likely give the parent who was denied possession make up time.

Modification of Child Support Obligation

The court may modify an order relating to child support and medical and dental insurance if (1) the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of the date of the current order’s rendition, or the date of the signing of a mediated settlement agreement on which the current order is based, or (2) it has been 3 years since the order was rendered or last modified and the monthly amount of child support under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. An order may be modified to provide for medical and dental support without a showing of a material and substantial change in circumstances. Loss of income likely qualifies as a material and substantial change in circumstances for requesting that the child support obligation be reduced.

Modification of Conservatorship and Parenting Time

A party to a current order may be able to modify conservatorship and parenting time if the court finds that the requested modification would be in the best interest of the children, and if there has been a material and substantial change in circumstances relating to a child or a party affected by the current order. Some examples courts have recognized as satisfying the “material and substantial change in circumstances” requirement include a parent relocating his or her residence, a parent marrying or cohabitating with someone whose presence may not be in the children’s best interest, a significant change to a child’s living conditions, a parent’s alienating behavior, and a parent’s drug or alcohol use, to name a few.

Additionally, the court may, but is not required to, modify which parent has the exclusive right to designate the primary residence of a child if a child who is at least 12 years of age expresses to the court in chambers the child’s preference that this right be modified.

Conservatorship and possession may also be modified if the parent who currently has the exclusive right to designate the primary residence of the children voluntarily relinquishes possession of the children to another person for at least 6 months. The relinquishment rule does not apply to military parents during military deployment, military mobilization, or temporary military duty.

Contact the Law Offices of Peggy Richard, PLLC to discuss your enforcement and modification rights.

If you or a child have been a victim of family violence or a victim of violence in a dating relationship, contact our office to discuss your right to obtain a protective order.

We can assist you in filing an application for a temporary protective order that will remain in effect, if the court finds there is a clear and present danger of family violence, until a hearing can be held to determine if the temporary protective order should become a final protective order. The alleged abuser must be served with the temporary protective order, a copy of the application, and notice of the hearing to determine if the order should become final.

A protective order can protect you and your family in the following ways:

(1) excluding the alleged abuser from occupying or coming within a certain distance of the protected person’s residence;

(2) prohibiting the alleged abuser from committing any additional acts of violence against a protected person;

(3) prohibiting the alleged abuser from communicating directly with a victim, or through any person to a protected person, in a threatening or harassing manner, or on finding of good cause, prohibiting the alleged abuser from communicating in ANY manner with the protected person, except through that person’s attorney or other person appointed by the court;

(4) prohibiting the alleged abuser from following a protected person or engaging in behavior that is likely to harass, annoy, alarm, torment, or embarrass a protected person;

(5) prohibiting the alleged abuser from going within a certain distance, usually 500 feet, of a protected person’s place of employment, school, or residence, or any other place where the alleged abuser becomes aware of the protected person’s presence;

(6) prohibiting the alleged abuser from disposing of mutually owned or leased property of the protected person;

(7) prohibiting the alleged abuser of possessing a firearm or ammunition; and

(8) interfering with the protected person’s use of his or her residence, utilities, and telephone service.

The court can also require the alleged abuser to participate in counseling and a battering intervention and prevention program and to pay the protected person’s reasonable attorney’s fees and costs incurred in connection with obtaining the protective order.

A person who violates a protective order can be punished by monetary fine or incarceration, or both, and may be charged with a crime if the violation involves an act that results in family violence.

At the Law Offices of Peggy Richard, PLLC, we take family violence seriously. Contact us if you believe you may be entitled to a protective order, or if you have been wrongly accused of committing family violence.