Texas Divorce Agreements

Most of you know by now that I am an attorney in San Antonio, Texas who handles family law cases such as divorce, annulment, child custody, child support, adoption, enforcement and modification matters.  In the context of divorce, the subject of agreements incident to divorce, including their validity and enforceability often comes up.

This blog will focus on "agreements incident to divorce," which are different from, although in some ways similar to, pre-marital or post-marital agreements. Pre-marital and post-marital agreements are usually entered into to before or after the marriage create separate property interests in each spouse.  That is, those types of agreements are intended to divide property at the time of the agreement, so that when a divorce occurs, the property has already been legally transformed into each party's separate property according to the terms of the agreement.  Of course, the pre-marital or post-marital agreement may also contain provisions for other property transfers in the event of divorce, which makes it similar to an agreement incident to a divorce. 

However, a pre-marital agreement or post-marital agreement, if drafted properly and according to the rules in the Texas Family Code, should be completely enforceable at the time of divorce. That is the important difference between pre-marital/post-marital agreements and agreements incident to divorce.  An agreement incident to divorce may be repudiated at any time before rendition of the divorce. 

So:  there are some important definitions to know in these cases.  First, an "agreement incident to divorce" is any agreement the parties enter into regarding the division of property, child custody, child support, and any other matter which could be an issue in a divorce proceeding.  If that agreement meets the requirements of a premarital or postmarital agreement, as we talked about earlier, then the enforceability of the agreement is determined by the chapter of the Family Code dealing with those types of agreements.  However, if the agreement is not intended to be a premarital or postmarital agreement, but merely an agreement as to the terms of the divorce, it is a bare "agreement incident to divorce" which either party may revoke any time before rendition of the divorce.  "Rendition" means the time a judge pronounces the parties legally divorced in open court.

Actually, the Texas Family Code says that agreements incident to divorce may be revoked at any time before rendition of the divorce unless "enforceable under another rule of law."  This has generally been held by the appellate courts to mean that the agreement must either be enforceable as a contract, or as a premarital or postmarital agreement.  We already discussed premarital and postmarital agreements--they require all sorts of disclosures and/or waivers, notarized signatures, etc.  Discussing enforceability of a contract is beyond the scope of this post, but suffice it to say that it is very difficult to enforce as a contract any agreement entered into before the divorce becomes final.  For one, a contract must be enforceable at the time it is signed.  Agreements incident to divorce are usually not intended to be effective until after the divorce, so they are not usually enforceable as contracts before the divorce. 

Lately, I've seen some attorneys try to claim that an agreement entered into by the parties should be enforceable as a "Rule 11 Agreement" even if the divorce hasn't yet been rendered.  Rule 11 is a Rule in the Texas Rules of Civil Procedure which says that any agreements between parties or attorneys in a case must be in writing and filed with the court, or recited on the record in open court.  However, the Texas Supreme Court has ruled specifically that Rule 11 is merely a general requirement for agreements to be enforceable--in other words, that rule does NOT by itself make an agreement binding on the court or the parties if the agreement is revoked by one of the parties prior to rendition of the divorce.

Now let me tell you why I wrote this blog.  Many times, the parties will reach an agreement at the courthouse on the day their case is set for trial.  One of the attorneys then draws up a handwritten "agreement for final orders" and then files it with the Court.  This is where so many attorneys make a HUGE mistake.  The general practice is, after reaching this type of an agreement (which is, you guessed it, an "agreement incident to divorce"), taking the parties into the courtroom, filing the handwritten agreement with the Court, and then "proving up" the divorce (asking the parties if they want to be divorced in front of the judge), at which time the court pronounces the parties legally divorced and notes the "rendition" of the divorce in the Court file.  However, sometimes the parties reach their agreement during lunch, or at some other time that no judge is available, and the attorneys decide not to prove up the divorce until the final typewritten divorce decree has been drafted. 

This is where the mistake occurs.  By failing to prove up the divorce immediately, either party may now decide to repudiate the agreement by filing some kind of written motion with the Court, or by merely stating in writing to the other party or attorney that the agreement has been repudiated.  That voids the agreement, and the parties now have to start over.  I have seen this result in 2 more years of litigation when the divorce could have been finalized if one of the attorneys had simply taken his or her client in to prove up the divorce right after the agreement was reached.  Bad practice.  Probably MALpracice.

J. Michael Clay is a San Antonio, Texas attorney licensed to practice in all Texas state courts, and in federal courts in the Western District of Texas.  He handles almost exclusively family law cases such as divorce, annulment, child custody, child custody modification and enforcement, child support, child support modification and enforcement, adoption, and other family law issues in Bexar County, Texas and its surrounding counties, including Wilson County, Atascosa County, Medina County, Bandera County, Comal County, and Guadalupe County.

Not certified by the Texas Board of Legal Specialization.

Comments

[Angela]

I'm divorced from my husband but we still have a house together in Texas and my name is on the loan. In the divorce papers the house is his but I failed to put he must refinance the loan. Is it impossible now to get a legal document forcing him to refinance the loan?

[Waiting]

My boyfriend's divorce was recently granted in front of a judge (it took almost 3 years). Both parties signed the Rule 11 Agreement. Now that the final divorce decree is ready to be signed, his ex-wife refuses to sign because she has changed her mind and said she doesn't agree on anything. To my knowledge, in the state of Texas, you don't need the non petitioners signature in order for the divorce to be final, correct? Can the judge sign it without her being there? Also, can she go back and change the Rule 11 Agreement even though she agreed to it and signed it infront of the judge?

[Waiting]

My boyfriend's divorce was recently granted in front of a judge (it took almost 3 years). Both parties signed the Rule 11 Agreement. Now that the final divorce decree is ready to be signed, his ex-wife refuses to sign because she has changed her mind and said she doesn't agree on anything. To my knowledge, in the state of Texas, you don't need the non petitioners signature in order for the divorce to be final, correct? Can the judge sign it without her being there? Also, can she go back and change the Rule 11 Agreement even though she agreed to it and signed it infront of the judge?

[Rogerisright]

Hi found your blog by way of google (what else) very good stuff here is my question for you ... my ex to be and I agreed upon settlement terms which I memorialized in the proper format and in writing ...we then signed it in front of a notary and agreed to go into court in two days together and read it into the record and/or file it for the judge to sign which ever way they wanted us to do it. My wife instead decided to do it commando (by herself) and what she did before she went to the courthouse is change 3 or 4 of the items that were important to me ...like health insurance coverage offered through her work (just wanted 60 more days of it which she intially agreed to then deleted it from the final judgment) anyway so she did that on wednesday and I got a copy in the mail with her apologies for not including me in doing it and when I read through it I was stupified (and you know how painful that can be) she took it to ex parte that afternoon and the judge has already signed it ...now what do I do (generally I live in Oregon and I know you won't be giving me specific legal advice and understand that) do I file a motion to set aside the judgment citing extrinsic fraud?? or ???

[Hopeful]

Hi. I am trying to contest the rule 11 that I signed. I had asked my lawyer what it meant and he had explained to me that it didnt needed to be detailed because my husband's lawyer would fill in the details that we had discussed. I was also not told nor did I see any where on this agreement that it could not be revoked. Simply I was told that I would have certain provisions and immediate relief... a copy of a complete decree based on the rule 11 would be sent over and we would be divorced the next day and I would start receiving the agreed items that weekend and child support would be given on the 1st. As I realized that I was receiving nothing I started to make inquires and discover we were not divorced that it had been "proved up" before the judge after the weekend and that no final order was entered. These terms were vague, 2 were entered incorrectly, and incomplete concerning the distribution of the tax returns especially for next year's filing, and in general contrary to what was verbally agreed upon. I do have a witness to the oral agreement and my attorney as well. In the meantime my husband had obtained a letter from his attorney telling his command that he had fulfilled all obligations and that we were indeed divorced. My husband then promptly turned off the water refused to pay any further bills and deployed to Iraq. Despite the hardship this has caused this is basically the same treatment I have received the last 8-9 months from him. I attempted to file an appeal of the rule 11 and it is filed with the case at the clerk's office. However when I attempted to get on the docket, I found that my attorney did not remove himself from counsel as previously discussed and I was unabled to get a court date until then. I had to wait for my husband's lawyer to set a date, to set the order, wherein I made an appearance. The Judge told us that as far as he sees it is his magistrate's duty to order the final decree but that he will allow me time to find counsel to substitute my current lawyer and convince him to amend or over turn the rule 11. I am way over my head here! I am not sleeping or eating most days. Anyone have advice?

[Susan]

My son recently divorced. He has primary custody of my granddaughter. They are currently residing with me. His ex-wife did not sign the final decree, but did sign the mediation agreement. Neither herself or her attorney showed up at the final hearing. It has been approximately 1 month and she has come back requesting to know when the house will be sold and wants dates and that she be allowed to able to claim the child on her taxes. She is also requesting that he move out of my house. Can she do this since she did not sign the final decree

[Edgardo R. Baez]

I just read your post, and it's great. Thank you counselor.

[Awaiting Appellate Decision]

In your opinion, which would overrule, terms handwritten on a Rule 11 agreement that spousal support be that greater than the State Mandated 3 year or Section 8.5 referenced in the FINAL DECREE stating that spousal support be terminated once the spouse receiving maintenance Cohabit with another person of abode?

[Michigan Lawyer]

I'm divorced from my husband but we still have a house together in Texas and my name is on the loan. In the divorce papers the house is his but I failed to put he must refinance the loan. Is it impossible now to get a legal document forcing him to refinance the loan?

[law firm directory]

From my personal experience, I have realized how important it is to hire services from only reliable law firms specializing in specific legal areas. To share my personal experience, once, I got stuck with a long term parental property issue and there was no hope to overcome all the legal matters. Thereafter, I searched a law firm directory; from the directory I hired a property disputes lawyer who has capable enough to solve my legal disputes within short span. Thanks to the internet which now offers every piece of information handy and has opened up 1000s options!

[GeorgeS]

Great Advice, people should also look into doing things on their own instead of hirring legal help, you can svae alot of money this way, like getting legal forms...

George
http://www.divorceattorneynet.com

[Mark Snyder]

My wife and I can't seem to agree on anything. I am at the end of my rope. Have an attorney but it still seems to be creeping along. I want so badly for this to be resolved. I was wondering, how long can this crap linger on? Nothing big involved, but she is pissed because I have another woman in my life and she is doing whatever she can to make this linger on.

No property, no kids involved, just piddling crap like personal things left to us by family.

What to do next?

Need advice.

[Richard]

I am going through a divorce too. You should have your attorney simply file the court date of the divorce. As long as the other attorney is informed of the court dates. They have to abide by it. A notice is only needed. Good luck
BTW I am not a lawyer

[lilly adams]

When children are involved in a divorce things

get very hard. There are so many emotions that

you feel. If you need

parenting

divorce advice look at this website

http://www.dadsdivorce.com they offer excellent

service.

[Cedaile]

I am doing a pro se divorce and have found great info on your blog. Since we don't have an attorney and he will not appear at the prove up, do we need a witness to the signatures on the final decree?

[Richard Powers]

My spouse railroaded me out the door by telling me while I was emotional that we would get back together, but needed to finish the divorce first for time. I just wanted out of there for relief. I mistakenly signed the papers, that were ok, except there were no dates as to when she would
1. Get the house out of my name.
2. Pay the bills she took off.
3. Pay a balance on a second mortgage, which I paid her 10K of.
She has re-married, spent the 10K for other things. and has filed for a dismissal based on the facts that it is a contract and she had no dates,so I have no grounds, and her attorney provided cases. This is Tenn. My attorney tells me we have no standing, that all we can do is plea to the judge. I'm unemployed and can not fight with cash. I can not get a place to live or re-start my business, because my ex and her new husband have control of my credit and debt. There is also a clause for damages if I claim Bankruptcy. Can you lead me to any form of relief or recommendation for my civil attorney. Hearing is soon.