Briefs
by Tom Noble
8080 N. Central Expressway
Suite 930
Dallas, Texas 75206
214-692-1888
fax: 692-8577
tnoble28@hotmail.com
http://www.tnoble.com/

7.25.05

Just when I thought I had found my niche as a mediation closer, envisioning myself in shamanistic robes and headdress and magic wand collection 1, presiding over 5 closings before noon each day and raking in the moolah by doing next to nothing, and then the Texas Legislature came along and screwed it up by passing HB 202.2 The good news is that HB 202 is not effective until September 1, 2005, so for the next few weeks, YOU NEED ME. After that, well, I may have to find another way to make a living. Damn! Just when I had found my PURPOSE! But, read on. You may still need a Mediation Closer, even after 9/1.

So, what is HB 202, and how will it affect closing family law agreements? HB 202 includes an addition to Chapter 6 of the Texas Family Code ("Suit for Dissolution of Marriage") called "Informal Settlement Conference". At first blush, this legislation seems to solve the problem that I discussed in my last newsletter about the necessity of having mediators preside over closing settlement agreements in divorce cases in order for such agreements to be enforceable, especially in parent-child cases. Or does it? Let's put these new statutes under Tom's old microscope and see what we discover.

First, let's make sure that we all understand that this new legislation applies only to divorce cases. So, to further complicate the subject of family law agreements, the Lege did not change the rules for closing agreements involving parent-child issues, including modifications, paternity cases, and, arguably, parent-child issues in divorce cases! In order to close those agreements and make sure that they are enforceable by simply requesting that judgment be entered in conformity with the agreement, as I see it, you are still going to need a mediator and a mediation agreement.

Regardless, let's say that you have a divorce case, and you want to take advantage of 6.604, what do you have to do? Well, first, you must have an agreement to have an "informal settlement conference".

So, how do you make such an agreement? Surely, best practice would be to have a form declaring that (a) a certain meeting constitutes an informal settlement conference; (b) if the parties intend to have this conference without their attorneys, they waive that right and acknowledge that each had the right; and, (c) the usual blah blah blah with signature lines for the notaries. Otherwise, if a party to one of these "Informal Settlement Agreements" 4 reneges, how do we know that he knew he was actually at an informal settlement conference when, after all, the football game was going on and that waitress walked by and, well, you get the idea. More importantly, what do you say when he says he did not agree to have the ISC without his attorney?

The requirements for an enforceable ISA are basically the same as for a Mediation Agreement: "not subject to revocation" in big, bold/all caps/underlined font, signed by the parties, and signed by the parties' attorneys if they are there.5 And, if you do this right, "a party is entitled to judgment …" 6

I need to stop here and confess that even though I have consistently advocated for doing whatever it takes to lower the cost of divorce for consumers, this kind of scares me. If a bully spouse gets ahold of the right form, abuses could occur. And, apparently, the Legislature was also concerned about this because before a trial court can sign a decree based upon an ISA, it must find "that the terms of the written informal settlement agreement are just and right". The new law also provides that if the court does not make this finding it "may request the parties to submit a revised agreement or set the case for a contested hearing". This bothers me too. With a Mediation Agreement, the court can either enter judgment based upon the terms of the agreement or set it aside, but it cannot order reformations, embellishments, or revisions.7 So, will proving up an ISA become a mini-trial?

My biggest concern about the efficacy of ISAs is: do they apply to SAPCRs? The statute certainly does not say so. The references to what is "just and right" echoes 7.001, which mandates a trial court to "order division of the estate of the parties in a manner that the court deems just and right". Both 6.602 (Mediation Procedures) and 6.603 (Collaborative Law) have twin provisions in Chapter 153 (Conservatorship, Possession, and Access). But, not 6.604. Perhaps, the Lege just hasn't gotten around to this yet, with all of that school finance mess to roll around in.

Regardless, effective September 1st, family lawyers will have one more method for closing family law agreements. But, obviously, this is a dynamic area of the law. So, stay tuned! I may yet fill my coffers as a Mediation Closer.