Informal Settlement Agreements

I get calls asking, “If my spouse and I agree on the terms of our divorce, can we just sign an agreement now and do the paperwork later?” My answer is usually, “it depends.”  What the caller is usually wanting to know is whether the agreement will stick if things go sideways before the divorce finalized.  
Parties who want something quick and fast can sign an agreement, called a “Rule 11 agreement,” and file that with the divorce/custody case at the courthouse.  Rule 11 agreements are hard to enforce, but a good way of outlining a tentative deal.  Rule 11 agreements are very brittle.  One side can revoke their agreement at any time before a final agreement is signed by the Judge.  That negates the whole reason for getting something signed and moving on.  Judges will of course review Rule 11 agreements and a party’s reason why they revoked their consent (new issues sometimes crop up, like drug use, violence, and other bad situations).  If the agreement was revoked for a reason that the Judge does not like, then there is likely to be an unfavorable outcome for that party revoking the agreement when the case does to a contested hearing.  Revoke your consent to a Rule 11 only if you have a very good reason for doing so, or it might come back to haunt you later in the case.
What’s the solution?  How do you reach an agreement and have it stick?  The sure answer is to go to mediation.  The more affordable, local mediation office is called the Travis County Dispute Resolution Center.  It’s located off I-35 and Hwy 290 intersection in Austin.  There are many other mediation options to fit all prices and match the complexities of your case.  Having a mediator who is also a family law attorney is usually helpful as they will have a better understanding of the issues.  Getting a signed mediation agreement is the best way to get an enforceable agreement that cannot be undone, except in extreme danger-to-children situations.  Mediation is always the best way to made a divorce agreement enforceable until the final paperwork can be submitted to the Court/Judge.
The next-best alternative is a little known statute, Texas Family Code 6.604.  These are known as Informal Settlement Conferences or Informal Settlement Agreements.  It allows parties and their attorneys to sign off on agreements and for them to be almost as unbreakable as a mediated settlement agreement.  The requirements are that, (1) it must be in writing, (2) it must be signed by ALL the parties involved in the lawsuit, (3) it must be signed by ALL the attorneys involved in the lawsuit, (4) it must have a bold and capitalized statement that the agreement is not subject to revocation, and (5), it must be filed with the Court.  A party is entitled to then draft an Order that matches this agreement and can set a hearing for the Judge to sign that Order after showing that it follows the terms of the agreement.  
Informal Settlement Agreements are a little better at holding up than Rule 11 agreements.  Informal Settlement Agreements can be set aside, in limited situations.  If the Court finds that the “terms of the written informal settlement agreement are not just and right, the court may request the parties submit a revised agreement or set the case for a contested hearing.” Tex. Fam. Code 6.604((e).  That means that if there was intimidation, deceit, other “sketchy” behavior in getting the agreement done, AND the agreement is totally lopsided, a party can have this long-shot chance to show the court how the agreement they signed is not “just and right.”  In my opinion, that would mean it is not fair because one side got the vast majority of the assets, or was given the vast majority of the debts, or there was a vastly unfair visitation schedule thrust on someone.  In my opinion, this does not mean that slight imbalances will result in setting the agreement aside. Slightly higher than normal child support, slightly skewed visitation schedule, or now wanting the sofa instead of the love seat and recliner would likely not get the agreement set aside.  It would have to be a very blatant unfairness to justify the Judge to not uphold the informal agreement.  This is where speaking to a family law attorney about your situation is helpful.  They will be able to advise you, based on your specific facts, whether such an agreement might be set aside by the Judge if contested.