Five Risks in Modification Suits In Texas

Under the Texas Family Code a party can modify a divorce decree or an order following a SAPCR. The modification may include a modification of child support, child custody, spousal support or some combination of those issues. Generally, however, a property division in a Texas divorce cannot.

In both child support and spousal support modification suits, the objective of the modification lawsuit is very narrow. The petitioner in a Tarrant County or Dallas County family court seeks to raise or lower the amount of support. Usually that means the income of the obligor increased or decreased. Either the obligor or the recipient of the support can pursue modification as it benefits him or her. The issue in these modification suits is primarily a fact issue whether the income changed. Payroll records and bank records typically make that issue reasonably simple to resolve.

However, modification of custody is often far more complex because the petitioner desires changing some aspect of the parenting relationship. That can invoke a much deeper set of facts and legal issues. Regardless of the modification initially requested, it is likely the situation will grow towards a more complicated lawsuit. Today’s post will address five key risks involved in modification suits in Texas.

1. Modification suits typically increase hostility between the parties

Usually if a modification suit is filed, whether it is for support or custody, there is already some residual hostility from the first suit and usually some new hostility that lead one or both of the parties to file for modification. That hostility will likely rise to a new level with the modification. It necessarily pits the parties in an adversarial process. Bad things will be said about each other. Lots of money will be spent. Both sides will nitpick at each other. Things get ugly fast.

The hostility can sometimes be dangerous because it can drive people to do things not in their best interest that can negatively affect their own position. At the end of the lawsuit, the parties still have to deal with each other. The hostility may subside but a modification only changes the things the parties agree to or that the judge orders. That is usually big picture issues, like possession schedules.

The smaller issues that can cloud the bigger issues and create hostility are rarely resolved in a modification suit because the judge doesn’t have the power to make people behave politely or be better parents. Some of that is just up to the parents. If the parenting relationship is more abrasive after modification then that is something the parents have to work out or live with on their own.

2. You will likely face countersuit

Counter-claims are almost certain after filing a modification in Texas. If you file suit to get something then the other party has little to lose by filing a countersuit against you to try to get the opposite or to get something else entirely. It’s inexpensive to file the countersuit to sue the petitioner back to modify something and since the two parties are already locked in litigation it is usually a good time to bring out all possible claims. The problem for you is that you have to go on the offensive and the defensive and should you lose your claims then the other parent or former spouse can still pursue his or her claims against you and prevail. That’s a double loss for you.

This is a risk of filing suit to modify a support order or possession order because it prevents you from changing your mind and walking away. Even if you give up your claims you still have the counter-claims to resolve. All of that is not to say that you should not pursue valid claims to modify an existing order but that you should not assume the lawsuit will be limited to your claims or that you will have an easy time trying to use a modification suit to harass the other side.

3. The changes ordered in a modification suit can be good or bad for you (or both)

In a modification suit in Texas, especially with counter-claims, a court may rule or you may settle all claims for a result in your benefit, to your detriment, or some mixed bag. It is possible, and does happen, where a modification suit is filed by the recipient of child support and through a combination of lawyering and the facts the child support is actually lowered. Similarly, when requesting modification of custody or possession you may end up getting the exact opposite of what you had hoped for.

Some of this happens through strategic lawyering; but a lot of the way these cases shake out has to do with the underlying facts, the authority and desire of the judge to make certain changes. In cases where a settlement arises without trial you may find yourself agreeing to something undesirable to reach a conclusion. Again, this is not to scare you off from pursuing valid claims but you should be aware that the conclusion of your modification suit may not match your wish list at the beginning.

Most of these cases reach some kind of settlement and negotiation is a give and take which means each side should expect to get some things they want and give up some things they do not want. It may be in your best interest to accept a settlement package that includes some things you don’t like.

4. Modification will likely be more technical and complex than the original lawsuit

Modification suits in Texas are often more technical than the original divorce or SAPCR. In the initial divorce or SAPCR, the objective was to reach a working conclusion typically based on very limited legal rules and presumptions that favor standardized orders, such as the standard possession order for possession and access to the children. The modification is also about reaching a working conclusion; but the rules greatly expand and those presumptions weaken because we know the first attempt to create a stable relationship failed.

Now we have to figure out how to create stability out of a twice-broken relationship. That is a much more difficult task. It does not make the situation any easier that the volume of factual information available is often greater than the original lawsuit.

5. Modfication suits are often expensive in Fort Worth and Dallas

Modification suits strictly limited to support may not be expensive; but if any custody issues become involved you definitely can expect to expend at least several thousand dollars reaching a conclusion. That number can greatly increase if you take your suit to trial. When you add the above four issues into your modification it is easy to see why family litigation becomes expensive. You must develop all of those detailed facts and legal arguments have to mature from the available facts. Modification suits do not resolve like what you see on TV court shows or courtroom dramas.

You will have this lawsuit with you for months, maybe years. Especially if one or both parties are more concerned with aggravating the other side than reaching a sensible conclusion. You need to want the results of the lawsuit enough to be willing to invest the time and money.

Fort Worth, Texas custody modification lawyers

Modification suits are truly the worst kind of family law litigation to attempt on your own. Talk to an attorney. It is worth your time to talk with an attorney to determine whether pursuing modification is worth it. It may be easier, and almost certainly cheaper, to try to work out a resolution outside of the courts.

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