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.