Can A Divorce Decree Be Modified If An Asset Was Omitted For Any Reason?
Most divorce decrees have a provision which sets forth the process for the disposition of previously undisclosed or unknown property. Either the court will then be able to make an equitable division or the parties can divide it 50/50. Some decrees state that any found asset that has not been previously disclosed in the case becomes the property of the party who didn’t have access to the property and knowledge of the property. That is a means of incentivizing everybody to be as open and honest in the disclosure of all their assets as possible.
What Legal Matters Must Be Considered When Seeking A Post-Divorce Modification Of Decree?
The only matters that can be modified post-divorce are child support, child visitation and possession, and possibly spousal support. A divorce decree is similar to any other judgment which becomes final 30 days after the judgment is entered. Generally, it’s only issues related to child support, custody and possession that are subject to modification. This is because the court has continuing jurisdiction over the children of the marriage.
Does The Same Judge Who Handled A Divorce Have To Handle A Modification As Well?
Unless the parties have moved the children to a different county and have been there for six months or more, the same court who heard the divorce will also hear any later modifications or enforcement actions. Judges in Texas are selected by the political process and may or may not still hold the bench for the court hearing your modification. In the end, you may be in the same court with a different judge.
Where Must A Modification Be Filed? Should It Be In The Same County Where The Divorce Happened?
You should file for a modification in the same court where the divorce was granted. If the parties have moved, you would file it in the same court and immediately and simultaneously make a motion to change venue to the new county. If the parties have moved out of state, you would generally file in your state of residence, in the appropriate court.
Do I Have To Use The Same Attorney That I Used For My Divorce In A Modification Case?
There may be some advantages to using the attorney who handled your divorce when filing a modification. That attorney will be familiar with the facts of the case, the parties, the children and the court. However, it is not required that you use the same attorney in a later modification. Find an attorney you are comfortable with, and one with the experience and knowledge to efficiently and effectively handle your case.
What Exactly Is The Process To Modify A Divorce Decree?
The only matters that can be modified post-divorce are child support, child visitation and possession, and possibly spousal support. A divorce decree is similar to any other judgment which becomes final 30 days after the judgment is entered. Generally, only issues related to child support, custody and possession that are subject to modification. This is because the court has continuing jurisdiction over the children of the marriage.
A Suit to modify is just like any other lawsuit. The petition, referred to as a Suit Affecting Parent-Child Relationship (SAPCR) or Motion to Modify is filed with the District clerk and then the district court clerk issues a citation, which is served on the other party. That party has 20 days and until the next Monday at 10:00 AM to file an answer. Once the petition is filed, usually there’s an early request for temporary orders, so the court will schedule a hearing for those temporary orders. In that hearing, the court will determine the custody of children while the suit is pending, temporary child support and spousal support, possession, and any other orders that are necessary to maintain the status quo and protect the parties and the child[ren] during the litigation.
Once you’ve gotten through that stage of the case, you go through the same process you would in any other civil court case. The parties will exchange discovery requests which consists of Requests for Disclosure, Requests for Production, Requests for Admission, Interrogatories, and Depositions. Each form of discovery is designed to elicit information related to the claims and defenses of the parties and it is essential that you take time to make sure the information you provide is accurate. This is often the most expensive stage of the litigation.
Once discovery is complete, one or both of litigants may file a Motion for Summary Judgment. This is not common in family law litigation, but it is permissible and in an appropriate circumstance, may be warranted.
Most courts in Texas require the parties to a child custody case to participate in mediation. The parties present the case to a mediator who acts as an impartial third party to help the parties to the lawsuit settle the case without a trial. If mediation fails to settle the case the parties continue to prepare for trial and often file pretrial motions asking the court to rule on matters which are likely to arise in trial. The trial may proceed before the Judge or the parties may elect to present the case to a Jury in appropriate situations.
Depending on the outcome of the case at trial one or both parties may ask the court for a new trial. A Motion for New Trial must be filed within 30 days from the date of the judgment. At the new trial, the court can consider new evidence, or the court may consider or reconsider the decision of the judge or jury to ensure the judgment is consistent with the evidence and applicable law.
Finally, the parties may elect to appeal an undesirable judgment. Within 30 days of a judgment, or longer if a Motion for New Trial has been presented, a party must file a Notice of Appeal and ask the court reporter to prepare the transcript of the trial with all pleadings and exhibits. The parties are given an opportunity to present briefs to the Court of Appeals and the Court of Appeals may or may not set the matter for argument. The Court will render a decision once it has had an opportunity to consider the record and arguments of the parties. One or both parties may appeal the decision of the Court of Appeals to the Texas Supreme Court for a final determination. The Texas Supreme Court may or may not accept the appeal for consideration. You file the petition, it is served on the other party, and that party files an answer. Then, you go through the normal steps of litigation, which include discovery, dispositive motions, mediation, and then a final hearing or a trial. The court determines whether the requested modification is going to be granted and to what extent.
For more information on Modifying A Divorce Decree In Texas, a free consultation is your next best step. Get the information and legal answers you are seeking by calling (940) 440-5250 today.
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