Unlike mediated settlement agreements under TFC Sections 6.602 and 153.0071, a court does not have to accept a TFC 6.604 written settlement agreement. Sec. 6.604(e) states “If the court finds that the terms of the written informal settlement agreement are not just and right, the court may request the parties to submit a revised agreement or set the case for a contested hearing.” Sec. 6.604(d) states, “If the court finds that the terms of the written informal settlement agreement are just and right, those terms are binding on the court.” Please see the March 2013 Gregory Negotiation Report re Williams v. Williams, ___S.W.3d___ (Tex. App. —El Paso Nov. 28, 2013) (Cause No. 08-11-00212-CV), stating that the terms of an valid MSA cannot be changed by the court unless a party to the agreement was a victim violence and the family violence impaired the victims decision making ability and the agreement is not in the best interest of the child. TFC Sec. 153.0071(e)(e-1).
In the Interest of M.A.H., A.B.H. AND C.T.H., Children, 365 S.W.3d 814 (Tex. App.—Dallas 2012, no pet.), the parties negotiated a TFC 6.604 informal settlement agreement re property division and children issues. Husband’s attorney prepared a written rule 11 agreement purporting to incorporate the terms of the agreement. Wife retained counsel and withdrew her consent to the rule 11 agreement before the court rendered judgment. Trial court signed a decree of divorce that incorporated the rule 11 agreement. Wife’s motion for new trial was denied. Wife appealed. Husband, appellee, argued estoppel, that appellant Wife accepted the benefits of the agreement. The COA held the an exception to the acceptance of benefits doctrine arises when the acceptance is not voluntary due to economic necessity and rejected appellee’s argument. Id. p.818.
The COA ruled that even if the agreement met the requirements of Sec. 6.604(b) and is thus binding on the parties, it is not binding on the trial court unless the court finds the agreement’s terms are “just and right.” Sec. 6.604(d). Id. pp. 819-820.
“If the parties, without mediation, reach an agreement on possession and conservatorship of the children or an agreement on child support, and if the court finds the agreement is in the best interest of the children, the court shall render an order in accordance with the agreement. See TEX. FAM. CODE ANN. sections 153.007(a), (b), 154.124(a), (b). Unlike agreements concerning dissolution of marriage, which by statute are not revocable, the statutes concerning unmediated agreements on child support, conservatorship, and possession of children lack similar language stating they are irrevocable. Sections 153.007 and 154.124 permit the trial court to render orders in accordance with an ‘agreed parenting plan’ or ‘agreement.’ See id Sections 153.007(b), 154.124(b). In this case, appellant revoked her consent to the agreement before the trial court rendered its orders on the agreement. Therefore, when the court rendered its orders, there was no longer an agreement in place. Accordingly, the trial court could not enter orders on child support, conservatorship, and possession in accordance the rule 11 agreement based solely on that agreement.” Id. p. 820.
The COA ruled the trial court erred in enforcing the rule 11 agreement concerning children issues. Id. p. 821. TFC sec. 7.001 requires the trial court to make a just and right division of the marital estate “having due regard for the rights of each party and any children of the marriage.” Id. p. 822. The COA affirmed the trial court’s judgment ordering the parties divorced and in all other respects reversed and remanded the case to the trial court for further proceedings without prejudice to the parties’ rights to seek or avoid the enforcement of the rule 11 agreement as a contract. Id. p. 822.
LESSON: Use mediation, not informal settlement agreements and rule 11 agreements.