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/

6.26.05

Mediation Closings!
$100 per party!

Family lawyers regularly confront the problem of how to close a divorce agreement. Mom and Dad split the sheets. They own a lot or a little - hardly matters for purposes of this discussion; one kid or several. After weeks or months of emotional haggling, they reach an agreement, resolving all of their legal issues. OK, so, now, how do you commemorate their agreement so that neither party can renege (just for spite, to leverage a better deal - nah, never happens)? No one wants a busted deal. Why is this even a problem? Texas Family Code section 7.006 gives divorcing parties the right to reach "agreements incident to divorce", but it also says that either party may repudiate the agreement before the court renders the divorce (the proverbial bang of the judge's gavel), unless the agreement is "binding under another rule of law". You can sue for breach of contract. Big deal. That does not get anyone divorced. To make matters worse, case law confirms this by holding that no trial court can enter a consent judgment if one of the parties repudiates the agreement before rendition.1 So, can we prepare "divorce agreements" 2 that are actually binding, so that a "deal is a deal"?

When it comes to agreements to divide an estate ("property agreements"), we can prepare "partition agreements".3 If one party reneges, the other party still can't get divorced; but, at least, if the lawyer has done his job correctly, summary judgment should short-cut the litigation process.4

Parent-child issues are another matter altogether. If someone knows how to carve an agreement about kids in stone (other than the method recommended below), please enlighten me. All contractual agreements concerning conservatorship and possession are subject to approval of the trial court based upon a best interests test.⁵ The same is true for child support agreements.⁶ That means that they may have some psychological value to the parties, but they are not legally enforceable. In fact, even after a judge signs an order concerning P/C issues, we still can't enforce it as a contract.⁷

Until recently, an algorithm existed: the Mediation Agreement.⁸ With a Mediation Agreement, if someone tries to renege, the trial must enter an order conforming to the terms of the agreement. A deal is a deal. As a lawyer who hates it when an agreement unravels before a court can sign a final order, I was calling everything on paper a mediation agreement. Every agreed decree stated that it was also a mediation agreement and included the silly magic language prescribed by the legislature. Then the Fort Worth Court of Appeals, handing down an opinion in February, ruined it for all of us.⁹ In that case, Tarrant County District Judge, Debra Ann Lehrmann, a sure-nuf expert, upheld my position: if the parties want to enter into a mediation agreement, they can. They don't need to actually go to a mediator! What a waste of money when they already have a deal. What's a mediator going to do? Ask them if they really really have a deal? Call it a "mediation agreement", stick in the magic language, and it's game over. Wrong! The Court of Appeals held that you cannot have a mediation agreement without a mediation. So, if you have an agreement, and just want a mediator to bless it, I'm your man: $100 per party. J Seems a little fatuous, but don't blame it on me. Consider it insurance.

What is really interesting is how we family lawyers have all of these different types of agreements (pre-marital, post-marital, agreements incident to divorce, mediation agreements, collaborative law agreements), and how we complicate life by having different rules for each of them. But, we save that discussion for another day.

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Ninety percent of all human wisdom is the ability to mind your own business.¹⁰

¹ Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995).

²Note the more abbreviated nomenclature. Don't you like "divorce agreement" better than "agreement incident to divorce"? C'mon. Sure you do: a revolutionary proposal, in and of itself.

³ TFC 4.102

⁴Lawyers who go this route should remember to prepare a Waiver of Financial Disclosure before execution of the agreement

 ⁵ TFC sec. 153.007.

 ⁶ TFC sec. 154.124.

 ⁷ TFC sec. 153.007(c); sec. 154.124(c).

 ⁸ I'm sorry. I'm too persuaded by Hemingway's blunt-speak to go for "Mediated Settlement Agreement". Also, you can do the same thing with a Collaborative Law Agreement as you can with a Mediation Agreement. But, collaborative law raises a number of issues, which are beyond the scope of the newsletter. Interested parties can read the October, 2000 issue of Briefs.

 ⁹ Cite: Lee v. Lee, _________________

 ¹⁰ Robert Heinlein.