Texas law recognizes and encourages private settlement agreements for legal disputes regarding a divorce. A divorce settlement may resolve issues concerning the division of the parties’ assets and liabilities, as well as include provisions for spousal maintenance, conservatorship, and child support.
When the parties in a divorce reach an agreement on all key issues, in most instances, a court will approve of their agreement. The parties in a divorce are given considerable leeway in resolving most of the aspects of their divorce through private settlement. They can even agree on solutions that are not otherwise available under the Texas Family Code.
Although experienced attorneys can easily spot concerning issues in a divorce settlement, self-represented parties might not have the experience and background to do the same. It is crucial for self-represented litigants to understand the key provisions in a divorce settlement, and how this can negatively affect their legal interests.
Basic Provisions in a Divorce Settlement
A court-rendered divorce decree will have provisions touching on several fundamental issues concerning a divorce. A private divorce settlement should also speak as to those issues.
At a minimum, the parties should acknowledge the following:
- The length of their marriage—such a provision should specify the date of the parties’ marriage and date of separation.
- Divorce grounds—a private divorce settlement should contain an acknowledgment of facts relevant to the basis for getting a divorce, most commonly the insupportability of the marriage
The length of a party’s marriage is relevant to issues regarding the division of the community estate and spousal maintenance.
Provisions Concerning Property Division
Ordinarily, Texas courts determine the division of marital assets and liabilities using principles of community property. However, the parties may agree to divide their property and debts in almost any way they see fit, as long as the terms are just, right, fair, and equitable.
If a court reviews a Final Decree and determines that property division is not just and right, it may encourage the parties to revise their agreement or seek legal counsel.
Important considerations regarding property division include:
- Characterizing property as community property subject to division
- Characterizing property as separate property that is not subject to division
- The value of the marital property
- Allocation of responsibility for community debts
Provisions Concerning Alimony and Maintenance
A divorce settlement may also contain terms related to spousal maintenance. Spousal maintenance can provide temporary support of one spouse using the future earnings of the other spouse.
The parties can agree to add a provision in their Decree regarding spousal maintenance. Spousal maintenance can provide a financially-dependent spouse with temporary financial assistance post- divorce. There are certain factors which must be met for spousal maintenance such as the ability to provide for your minimum reasonable needs and the length of marriage. There are other elements regarding a spouse’s ability to be eligible for spousal maintenance that our office can discuss with you.
A Texas court may approve of provisions for spousal maintenance in the divorce decree if the Court finds the elements are met. The Court can also Order the maintenance payments be taken out of the spouse’s check through an Income Withholding Order.
Conservatorship and Child Support
Provisions concerning conservatorship are essential in divorce cases involving minor children. A Court must make a finding that the proposed parenting plan is in the child’s best interest. If the Court believes your agreement is not in the best interests of the child, the Court may not approve of your agreement.
Key provisions in a divorce settlement regarding conservatorship include:
- Joint managing conservatorship
- Educational, Psychiatric and Invasive Medical decision making rights and duties;Geographic Restriction
- Passport provisions
- Possession Order
- Holiday Possession
- Exchange of the child at all times
- Child support
- Medical and Dental Support
Like other private divorce settlement terms, the parties can agree on terms that a Texas court would otherwise be restricted from rendering. For example, the parties can agree to order child support above or possibly below guidelines.
Modification of Possession and Access, Child Support and Child Custody
The terms of a divorce settlement in regard to the children will be in effect for years after the parties’ divorce. As a result, both parties should be comfortable and confident about their agreement. However, sometimes unforeseen developments can jeopardize a party’s ability to satisfy their parental obligations.
In litigated custody matters, the court will allow the parties to modify the terms of child support, possession and access or conservatorship upon a showing that a material and substantial change has occurred. The material and substantial change must make the current order unworkable or certain elements regarding the time since the rendition of your order must be met.
Some divorce decrees can specify the conditions that must occur prior to filing a suit for modification such as a mediation provision. In addition to specifying the terms prior to filing a suit for a modification, the parties may want to include provisions where they stipulate to the circumstances that were applicable when they entered into the original agreement. This is very common in child support agreements for example, if the parties have agreed to pay above or below guidelines, it is prudent to include your reason for doing so. By doing so, the parties have a clear understanding when one party goes to modify the order years later.
Contact Simple Texas Divorce for Legal Assistance
If you have questions or concerns regarding the negotiation, execution, and process of a divorce settlement agreement, you should get in touch with an attorney from Simple Texas Divorce. We offer cost-effective legal services to self-represented parties in divorce cases. Our experienced attorneys can review your divorce settlement and advise on the potential problems that could affect your legal interests.