Spouses in the midst of divorce have every opportunity to divide their assets and settle important issues without having to get the court involved. In fact, this often ends up working in their favor, as having a judge settle these issues can often result in an agreement that does not fully satisfy either of them.
The Mediated Settlement Agreement
The mediated settlement agreement (“MSA”) is exactly what it sounds like. It is an agreement reached through the process of mediation by both spouses. The agreement may address issues of suit before the court, including property division, spousal maintenance, child support, child custody, and more. Mediation is where most Texas divorces actually resolve. An agreement reached through mediation is one of the parties’ own making. That means both spouses agreed to the terms of MSA, rather than having an unfamiliar third party, i.e. a judge, dictate the terms of a decree for them. A further benefit of the MSA is that once it is reached, i.e. the parties and their attorneys sign off on it, the parties are entitled to judgment on if from the court. After the MSA is agreed to, then the parties must then take the further step of enshrining that agreement in a decree.
Even for spouses who find they disagree on these major issues, sometimes vehemently so, negotiating a mediated settlement agreement between the two of them, without the involvement of the court, often is a much more desirable – not to mention less stressful – option. It is an instrument of their own making.
The Divorce Decree
The mediated settlement agreement, while a written document worked out between the two spouses, still needs to be approved by the court in the form of a decree. The MSA alone does not dissolve a marriage. The decree is a court order that identifies the parties, any children under the age of 18 (or not otherwise emancipated), and articulates the terms of the agreement (the MSA) reached between the two of them.
Alternatively, if there were no agreement, i.e. no MSA, and the divorce was contested before the court (or a jury), the decree will set forth the terms of the ruling.
In either instance, the decree is a court order, and its terms legally binding and enforceable on the parties.
Even in cases in which a divorce is uncontested, Texas has set a mandatory, 60-day waiting period from the date a petition is filed with the court until the time a decree may be entered. Under Texas law (with only a few exceptions, such as domestic violence), this is the shortest amount of time in which a divorce could be completed and the decree finalized. In most cases, depending on a court’s specific caseload, the actual time it takes to go from petition to entry of a decree is typically longer.
After the divorce decree has been signed by a judge, it will then be filed with the court clerk. The trial court that entered the decree retains “plenary jurisdiction” (meaning power to amend or revise terms of the decree) for 30-days after the decree gets entered. After the 30-days lapse, the decree truly becomes “final.”
Can a divorce decree be appealed?
In the case of a contested divorce, the chances of any ruling made by a judge leaving one or both spouses unhappy to some degree is very high. It may be that a party believes that there is a basis sufficient enough to contest the outcome of the court’s ruling. In such an instance, a party may have the ability to appeal the court’s judgment. In such a case, the party must be particularly mindful of time. After a decree was signed and entered by the judge, an appeal must be filed within 30 days.
Can the terms of a mediated settlement agreement be changed?
No. Not exactly…. If the parties reach a mediated settlement agreement, they’re entitled to judgment on that document.
Of course, people change, as do their circumstances. That reality may mean that a need arises to address aspects of their decree to effectuate a change. One spouse may accept a job out of state. The other may experience a drastic change in income. In some instances, these changes will not necessitate a modification of your decree. However, the extent a decree can be modified only relates to issues that touch on the parent-child relationship.
A division of marital property, of what was the community estate, is final upon the entry of the decree. That means it is not subject to future modification.
Can a divorce be granted without a settlement agreement?
Of course! Texas law does not require that both spouses consent in order for a divorce to be granted.
If the parties are not able to reach an agreement, then the forum for the resolution of their case will be contested litigation, i.e. a trial.
Alternatively, if one party simply refuses to participate in any aspect of the proceeding, they may be subject to a default decree. A default decree arises when the other party has been served with the petition, given notice of a trial, and thereafter refuses to appear. Therefore, the refusal of one spouse to participate in the proceedings not mean the other spouse will be trapped in the marriage forever.
Ask for Help
Sometimes a divorce may be relatively simple. Other times it can be very complex and emotional. When property, businesses, and, of course, children are involved, the process can feel daunting. Fortunately, if you have questions about any of this, we’re glad to offer guidance through one of our experienced divorce attorneys. We’re here to help.