Mediation

Texas Divorce Decree Must Generally Comply with Mediated Settlement Agreement

Published on: January 31, 2024 | by Francesca Blackard

If the parties in a Texas custody case reach a Mediated Settlement Agreement (“MSA”), the court must enter judgment on the MSA. The MSA is binding if it meets the three requirements set out in Tex. Fam. Code § 153.0071(d). First, it must prominently state that it is not subject to revocation. It must also be signed by the parties. Finally, it must also be signed by any party’s attorney who is present at execution. The court may, however, decline to enter judgment on an MSA if it finds that a party was the victim of family violence which impaired their ability to make decisions and that the agreement is not in the best interest of the child. Tex. Fam. Code § 153.0071(e-1). Unless this exception applies, the trial court generally does not have the discretion to deviate from the MSA and a party is entitled to judgment on the MSA. A court’s order may include terms that are necessary to implement the MSA, but it may not substantially alter the MSA. A father recently challenged a divorce decree that did not compart with the parties’ MSA with regards to where exchanges were to occur.

Mediated Settlement Agreement

The parents had two children together during their marriage. They separated in 2020 and signed an MSA in October 2021. Pursuant to the MSA, the parents would be joint managing conservators and the mother would have the right to determine the children’s primary residence. The MSA further gave the father a standard possession order which would be an expanded standard possession order if he lived within 50 miles of the children. It also provided that the exchange location would be at a particular McDonald’s in Huntsville with a pickup time of 8 p.m. and a drop-off time of 5 p.m. as long as the father and children lived in the current locations, with provisions for changing the location if the parents lived in the same county.

At the hearing, the mother’ attorney claimed that the MSA was intended to state that the parties would only meet in Huntsville once a month instead of for all the exchanges. The father’s attorney argued, however, that the provision stated what the father wanted with regard to exchanges.

Texas Appeals Court Upholds Divorce Decree Following Arbitration Award

Published on: May 23, 2023 | by Francesca Blackard

iStock-1287431987-300x200 Parties to a Texas divorce may choose to pursue alternative dispute resolution to avoid litigation. They may resolve part or all of their disputes through mediation. A mediated settlement agreement (“MSA”) is binging on both parties if it prominently states that it is not subject to revocation, is signed by both parties, and is signed by the party’s attorney, if present. Tex. Fam. Code Ann. § 6.602. In some cases, an MSA may include an arbitration provision, requiring the parties to arbitrate disputes arising from the MSA. A wife recently appealed the divorce decree, arguing it did not comply with the parties’ MSA and that the judgment based on the arbitrator’s award should be overturned.

Mediation and Arbitration

The husband and wife entered into a mediated settlement agreement (“MSA”), agreeing to use a specific realtor to sell their properties. According to the appeals court’s opinion, the husband obtained a new realter after the wife informed him the chosen realtor “declined” to sell their properties. That realtor found errors in the deed and recommended referred them to real estate attorneys.

The parties did not agree on which realtor to use or if they should have the documents corrected by an attorney. Arbitration had been scheduled, with the arbitrator being the same person who had served as the parties’ mediator. The wife obtained new counsel, who objected to the arbitrator due to concerns about impartiality. He also expressed an intention to move for a new trial or set aside the MSA. He alleged the husband’s attorney failed to disclose a working relationship with the mediator before the mediation occurred. However, there were emails showing the husband’s attorney had disclosed to the wife’s previous attorney that she previously had been an intern with the mediator and the wife’s attorney had no objection to the mediator. Additionally, she disclosed the same information to the wife’s second counsel by phone, and the mediator stated before the mediation started that the husband’s attorney had been an intern, and there were no objections.

Texas Final Divorce Decree Constituted Consent Judgment after Revocation of MSA

Published on: April 3, 2022 | by Kelly McClure

“A scroll of a Divorce Decree, tied with a black ribbon on a mahogany desk, with a dead white rose buttonhole from the Wedding Day, with a black pen. Copy space..”

A Texas Mediated Settlement Agreement (“MSA”) must generally include language that it is not subject to revocation, be signed by each party, and be signed by the party’s attorney who is present at the time of execution. Tex. Fam. Code § 6.602(b). If the MSA meets these requirements, it is binding and the court must render a divorce decree adopting it. The judgment must be compliant with the agreement and must not substantively alter it. The parties may revise or repudiate the agreement before the divorce is rendered, unless the agreement is otherwise binding under another law. Tex. Fam. Code § 7.006.

In a recent case, a former wife appealed a divorce decree, arguing the court erred in rendering judgment on a settlement after she revoked her consent. The parties had reached an agreement at mediation and signed an MSA, but only the husband’s attorney’s signature was on the document.

Wife Revokes Consent to MSA

The wife filed a revocation of consent and an objection to the entry of a final divorce decree. She argued the agreement was not valid without her counsel’s signature and was therefore revocable.

Texas Mediated Settlement Agreement Upheld Despite Husband’s Failure to Disclose Assets

Published on: January 17, 2022 | by Francesca Blackard

Insurance agent checking policy documents in office.

When parties to a Texas divorce case enter into a mediated settlement agreement (“MSA”) that meets the statutory requirements, the MSA is generally binding and the divorce decree must adopt the agreement. An MSA may not be enforceable, however, if it was procured by fraud or other dishonest means.

A wife recently challenged a divorce decree incorporating an MSA that she asserted was procured by fraud. A divorce decree was issued in Dubai and both parties appealed. The wife subsequently petitioned for divorce and to modify the Dubai court orders in Texas. During discovery in the Texas cases, the husband disclosed one bank account.

The parties signed an MSA that gave the wife half of a retirement account in the husband’s name, $94,000 in cash, and the real and personal property and accounts in her own name or possession. The husband received the other half of the retirement account, real property in Florida, and the real and personal property and accounts in his name or possession. The parties also agreed to cease discovery, except as to issues involving the child.

Addressing an Error in a Texas Child-Support Mediated Settlement Agreement

Published on: November 8, 2021 | by Francesca Blackard

iStock-1125625723 Parties to a Texas suit affecting the parent-child relationship may enter into a mediated settlement agreement (“MSA”) to resolve one or more issues in their suit. An MSA is binding if it prominently states in bold or underlined font or in capital letters that it is not subject to revocation, is signed by the parties, and is signed by the parties’ attorneys who are present at the execution. Tex. Fam. Code § 153.0071. When these requirements are met, a party is entitled to judgment on the MSA. Because an MSA is a contract, it is construed according to the contract-interpretation principles. If an MSA is ambiguous, there is a fact issue of the intent of the parties. A Texas appeals court recently considered what should happen when an MSA included a discrepancy between the stated amount of child support and the calculation for determining child support.

Mother and Father Enter into Settlement Agreement

Following mediation, the parents entered into an MSA that included an attached handwritten page with a child-support calculation as well as four W-2s showing the wages the father earned. The parties initialed each page of the MSA, but not the W-2s.

The MSA identified the father’s child-support obligation as $1,062.60 per month. The attachment stated that “child support is based on [the father’s] representation that he has no rental income and is calculated pursuant to the attached calculations and Exhibits.”

Texas Appeals Court Finds Wife Did Not Commit Fraud by Nondisclosure

Published on: June 22, 2021 | by Kelly McClure

divorce-property-fraud In some cases, a party to a Texas divorce may agree to a settlement that seemingly has less-than-favorable terms. For example, a party may agree to their spouse receiving property with a higher monetary value to ensure they receive property that has personal value to them. In a recent case, a husband alleged the wife committed “fraud by nondisclosure” by entering into a Mediated Settlement Agreement (“MSA”) without disclosing that the FBI had possession of certain items that were to be awarded to him under that MSA.

Husband is Awarded Certain Items He Believes are in Wife’s Possession

The parties agreed to the MSA, which gave the wife the personal property in her possession with certain exceptions, including a laptop and cell phone. These items were explicitly given to the husband in the MSA. When the husband learned that the wife did not actually have possession of these items, he moved to set aside the MSA. The husband testified that the wife having those items was “a key factor” in his agreement to the MSA and the wife receiving so much joint property and custody of their child. He said the contents on those devices could have a negative effect on his military career. He had initially believed they were in the wife’s possession, because he had left them at the home and she had pictures and videos from the devices. He had previously petitioned for those items to be returned to him, and the wife had subsequently asked to keep all of the possessions in the marital home.

Husband Moves to Set Aside MSA – But is Denied

After he signed the MSA, the husband learned the FBI had both devices. He moved to set aside the MSA in May, arguing the wife committed fraud when she failed to disclose that she did not have the devices. The trial court denied the motion, and the husband appealed.

Equitable Property Distribution in Texas Divorce

Published on: April 11, 2021 | by McClure Law Group

does-adultery-affect-alimony-in-idaho-1080x600-1 In a Texas divorce, the court must divide the property in a just and right manner. The requirement is that the division be equitable, but not necessarily equal. The Texas Supreme Court identified several factors courts should consider in Murff v. Murff. These factors include the parties’ physical conditions, education, financial condition, abilities, and ages. A husband recently challenged a trial court’s division of the marital property following a mediated settlement agreement between the parties.

The parties married in 1999 and the wife initiated divorce proceedings in 2017. Pursuant to a temporary order, the marital home was sold and about $500,000 in sales proceeds were put into an escrow account. The court signed an agreed order allowing disbursement of an equal portion of the proceeds to pay each party’s divorce attorneys. The rest of the proceeds was left in the escrow account.

Texas Divorce Decree Must Adopt Terms of a Mediated Settlement Agreement

Published on: February 23, 2021 | by Kelly McClure

A Texas Mediated Settlement Agreement (“MSA”) that meets the statutory formalities is binding and the parties are entitled to a judgment upon it (i.e., the divorce decree must adopt it). In a recent case, a husband challenged an order issued after the divorce decree that was intended to conform the decree with the terms of the MSA.

The

parties executed an MSA. A couple of weeks after the court entered the final divorce decree, the wife moved for clarification of the MSA. She alleged the final decree did not reflect the MSA, because it failed to confirm certain items as her separate property. The trial court entered an order confirming those items as her separate property after a hearing.

The husband appealed.

Is My Spouse Entitled to Half of My 401(k)?

Published on: January 24, 2021 | by Spencer Page

iStock-654702696 For many Texans, their 401(k) plan is one of their largest assets – particularly for those who have made regular contributions throughout their career. On top of that, 401(k) plans often hold symbolic significance above and beyond their sheer dollar value. To some, they represent safety, security, and an end to the monotonous rat race. For others, they are a prize, a badge of honor earned after countless late nights at the office. However, no matter the role they play in your life, the thought of losing half of your hard-earned nest egg can be terrifying. This begs the question: how much of your 401(k) is actually at stake in a Texas divorce? Continue Reading ›

Texas Divorce Decree Could Address Changes Arising from Hurricane Occurring after MSA

Published on: January 11, 2021 | by Francesca Blackard

iStock-178756342 When a divorcing couple reaches a Mediated Settlement Agreement (“MSA”) that meets the statutory requirements, the parties are entitled to a judgment on that MSA. Tex. Fam. Code Ann. §§ 6.602(c). In some cases, however, things can change after the MSA is agreed upon. In a recent case, a wife challenged the way a court addressed changes arising after the MSA was executed, but before the final decree of divorce was entered.