Texans should think twice before agreeing to a non-guideline child support amount. On September 1, 2018, a law went into effect in Texas that could affect people who agree to child support that is higher or lower than the standard amount under the state child support guidelines. Under the old law, a judge could modify child support (1) if there has been a material and substantial change in the circumstances of the child or a person affected by the order or (2) after three years from the child support order if there has been a 20% or $100 dollar difference between the current support amount and what it would have been under the guidelines. Under the new law, however, if you agree to an amount higher or lower than the guideline, the second option does not apply, making it almost impossible for one parent to get support modified unless there has been a material and substantial change in circumstances since the date of the last order.
The Texas Code doesn’t define “material and substantial change”, although Texas appellate court rulings have found that the change can include any aspect of a child’s well-being, be it physical, mental or emotional. Judges have broad discretion in each case and the burden of proving there has been a material and substantial change is on the parent seeking modification. The law specifically excludes medical support or dental support for the children from the material and substantial change requirement, which means that even spouses who agreed to a non-guideline child support amount can still file for modification of medical or dental support on either grounds.
Couples sometimes choose to deviate from the child support guidelines because think they are in a better position to determine the amount of money they need to care for their children than a judge. In other cases, especially when lawyers aren’t involved, a parent may agree to receive less or pay more child support than the state guideline amount to appease the other parent under the assumption that they could file for support modification at some point shortly after the divorce is finalized. Because of the new law, however, these parents are now stuck with the support amount even if the deviation is significant and causes a financial hardship to one spouse, unless they can prove there has been material and substantial change in circumstances.
Of course, if both parents are able to agree to a new child support amount, the statute doesn't prevent them from making a joint request for modification at any time. This is done by filing a joint motion to modify child support, also known as a stipulation, with the Court. As long as the judge doesn’t find the new amount to be contrary to the best interest of the children, it should be granted. The judge may require a hearing before modifying support or may simply sign the order without a hearing and send signed copies to the parents.
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