Your divorce will not become final until all the issues have been resolved and a divorce settlement is agreed upon by you and your soon-to-be ex-spouse or the issues are resolved by the Court. The settlement covers every possible issue, including division of assets and liabilities, child custody, visitation and support and separate maintenance for one spouse if it has been requested. The family law court will incorporate your settlement agreement into its final dissolution order and it is then enforceable as a Court Order. Both parties must comply with the terms or risk being held in contempt of court.
There are different types of written settlement agreements. You need to be aware of what these different agreements are and be sure the correct document is filed with the Court. Please don’t get confused and sign one when you thought you were agreeing to terms that should be included in a different document.
A Basic Divorce Settlement
Texas family law courts encourage divorcing parties to come to their own agreements on all possible issues. Sometimes they may agree on one or more issues, but not all. Whatever they agree to, they memorialize in writing as a Settlement Agreement and file it with the court. Courts generally approve settlement agreements unless it finds the provisions for child custody, visitation and support are not in the best interest of the child or that the property division is not just and right (fair).
These sorts of agreements are often put into what we call a Rule 11 agreement. Rule 11 of the Texas Rules of Civil Procedure allows parties to put agreements into writing, sign them and file them with the Court. They may be withdrawn at any time before the Judge makes them the ruling of the Court. However, be careful before you sign a Rule 11. Even though you can withdraw your consent later, the agreement will still be on file and the Court will know you broke your agreement. Moreover, even if you withdraw consent to the Rule 11, parts of the agreement may still be enforced using contractual remedies.
Once an agreement is signed by the parties and filed with the Court, it is then incorporated by the Court in its Final Order and becomes binding on the parties. This is always with the understanding that most issues involving children – custody, visitation and child support – are modifiable in the future. But a property settlement will almost never be modified once the Court has rendered an order, which divides the assets and liabilities, whether that rendition came from an agreement of the parties or a trial before the Court. Unless one party can show fraud on the part of the other, even if the settlement agreement on property issues seems like a bad bargain, it is unlikely that it will be later modified.
A party who petitions the court to “undo” a settlement agreement which has been rendered and accepted as the order of the Court has a difficult task, so both parties need to be sure the agreement has terms with which they can comply and which they are satisfied with.
Informal Settlement Agreement
An Informal Settlement agreement may contain all issues of the divorce, but it is not binding with regard to custody, visitation and child support issues until it is accepted by the Judge as an Order of the Court. However, with regard to the division of property and debts, once an Informal Settlement Agreement is signed, either party is entitled to a judgment on the agreement, unless the Court finds that the agreement does not comprise a just and right division of the community estate – an event that is most generally unlikely.
A Mediated Settlement Agreement
If the parties work with a disinterested third-party mediator and as a result come up with a mutually satisfying agreement covering all, or even some, of the issues, they put their agreement in writing and file it with the court with a caption stating: Mediated Settlement Agreement. Either party is then entitled to a Judgment based on the Mediated Settlement Agreement, including any provisions involving children. Unless the Court makes specific findings that the agreement is not in the children’s best interest or that the property division is not just and right, the Judge must sign an Order which follows the terms of the Mediated Settlement Agreement.
Divorce can involve some complex issues. Each of the large format items – division of assets and debts, identification of separate and community property, resolution of child custody and visitation issues as well as alimony – take separate knowledge and skillsets. That’s part of the reason we have Board Certified Family Law Specialists. If you are thinking about a divorce or custody suit, interview as many attorneys as it takes to find one you have confidence in. These cases aren’t easy and having a lawyer you don’t think can do the job can make it far worse. Contact Jeff Anderson, a Board Certified Texas family law attorney who has years of experience fighting for his clients. He’s here to help guide you through the legal process and get you the results you need.