Can you mediate and settle before filing for divorce in Texas?

If you and your spouse are considering a divorce you may want to avoid costly litigation and mediate the case. Mediation is the process of asking a third party, a family law mediator, to help you settle the issues regarding property, custody, visitation, child support, etc.

Mediated Settlement Agreements Are Binding-

One reason to settle a case at mediation is that a Mediated Settlement Agreements, or an “MSA”, is almost impossible to change or challenge once signed. If you can reach an agreement and sign an MSA, you can know that those issues are behind you and move forward and enter a decree finalizing the case.  A valid MSA “is binding on the parties and requires the rendition of a divorce decree that adopts the parties’ agreement.” Milner v. Milner, 361 S.W.3d 615, 618 (Tex. 2012); see also Loya v. Loya, 526 S.W.3d 448, 451 (Tex. 2017).

Usually, parties enter mediation only after a divorce is filed. But what if the parties want to enter mediation BEFORE a divorce is filed. Would an MSA that was signed before any divorce petition was filed be valid? Or would it be subject to being overturned in court?

That issue was recently decided in a case before the Texas Supreme Court, Highsmith vs. Highsmith. In Highsmith, the parties mediated before filing for divorce, and then judgment was entered that reflected the Mediated Settlement Agreement. A judgment is a final order in a divorce case. One spouse challenged the MSA and judgment, arguing that it wasn’t valid since the mediation happened before any divorce was filed. The court held that an MSA is binding, even if entered before a divorce is filed as long as it meets certain requirements.

What are the requirements for an MSA entered before a divorce is filed? 

Three things found in Texas Family Code 6.602

  1. a prominent statement of irrevocability
  2. signatures of the parties, and signatures of the attorneys (if any) present when the MSA was signed
  3. and, absent narrow exceptions, a party is “entitled to judgment” on an MSA that meets those requirements.

So the answer to our question is-

Yes, you can mediate an settle a case BEFORE filing for divorce in Texas. That may not always be the best option, but it’s one to discuss with your family lawyer.

If you are considering mediation or divorce call Guest and Gray’s family law team today. We offer free consultations for all family law issues, including child custody and divorce. We have a team of experienced family lawyers ready to help you. We serve the greater Dallas area including Dallas, Rockwall, Kaufman, and Collin County.