Mediated Settlement Agreements On Child Custody and Marital Property
Posted By Elias Lorenzana on Aug 21, 2009 11:05pm PDT
Contested divorce cases frequently revolves around spousal disputes about the custody of the child or children of the marriage and or the proper division of the marital estate. In lieu of an all out contested divorce cases where the parties battle each other in open court, an alternative option is for the parties to enter into mediation, whose outcome is genreally the mediated settlement agreement. However, the question posed is, what happens if there is a mediated settlement agreement, however, one spouse decides to cancel the agreement and go to court instead?
This is what happened in the case of Brooks v. Brooks. Generally speaking in Texas and under Texas Family Code Section 6.602(b), and 153.0071(d), mediated settlement agreements are binding in suits affecting the parent-child relationship, as well as suits involving only marital property. Id, 6.602(b)B(c), 153.0071(d)B(e); Boyd, 67 S.W.3d at 402; Spinks v. Spinks, 939 S.W.2d 229, 230 (Tex. App.- Houston [1st Dist.] 1997, no writ). Tex. Fam. Code Ann. '' 6.602(b), 153.0071(d) (Vernon 2002 & Supp. 2007).
Texas has a public policy of encouraging the peaceful resolution of disputes, particularly those involving the parent-child relationship, and the early settlement of pending litigation through voluntary settlement procedures. See Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (Vernon 2005); Boyd v. Boyd, 67 S.W.3d 398, 402 (Tex. App.- Fort Worth 2002, no pet.).
Trial and appellate courts are charged with the responsibility of carrying out this public policy. Tex. Civ. Prac. & Rem. Code Ann. § 152.003 (Vernon 2005); Boyd, 67 S.W.3d at 402; Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 715 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (op. on reh'g).
The Texas Family Code also furthers this policy by providing that a mediated settlement agreement is binding on the parties if the agreement :
(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.
Ordinarily, settlement agreements arising from mediation are not binding when one party timely withdraws consent to the agreement, unless the other party successfully sues to enforce the settlement agreement as a contract that complies with rule 11 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code Ann. ' 154.071(a) (Vernon 2005); Padilla v. LaFrance, 907 S.W.2d 454, 461B62 (Tex. 1995); Boyd, 67 S.W.3d
at 402. Unilateral withdrawal of consent does not, however, negate the enforceability of a mediated settlement agreement meeting the requirements of 6.602(b), and a separate suit for enforcement of a contract is not necessary. Boyd, 67 S.W.3d at 402; Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App.- Eastland 1997, writ denied). Rather, section 6.602 creates a procedural shortcut for the enforcement of mediated settlement
agreements in divorce cases. Boyd, 67 S.W.3d at 402; Cayan v. Cayan, 38 S.W.3d 161, 166 (Tex. App.- Houston [14th Dist.] 2000, pet. denied). Thus, a mediated settlement agreement that meets the requirements of section 6.602(b) is binding, and a party is entitled to judgment on the agreement notwithstanding rule 11 or another rule of law. Tex. Fam. Code Ann. § 6.602(b) (c); Boyd, 67 S.W.3d at 402.
Contact an experienced divorce attorney in Austin, Texas before entering into a mediated settlement agreement.
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