Articles Posted in Mediation

In Texas, if a mediated settlement agreement is properly executed you cannot challenge it.  Texas Family Code Section 153.0071(d) and (e) mandate that courts shall issue an order in compliance with a mediated settlement agreement.  This is why it is so important to have an attorney attend mediation with you.  You cannot go back after the fact and change it.   When the mediated settlement agreement is signed and on file with the court, that is it.  Those are the terms and they cannot be changed.  Many have tried and failed.

Why Would a Party Want to Back Out on a Mediated Settlement Agreement?

Mediations can sometimes be very difficult and long days.  You typically do not reach an agreement until the very last hour after you have already been there for eight hours without a break.  At this point, you are exhausted and you may not be thinking clearly.  So, you might forget something.  Also, a lot of parties have what we call “buyer’s remorse” in that you thought it sounded good at the time but now in practice it is not working out.  For instance, a visitation schedule for a child—a party may end up wanting more or less time due to demanding schedules and want that changed.  Or, a party may want to say that they actually wanted more child support than what they originally agreed to and they want to challenge that now.  However, the law is pretty clear that you cannot.

You have a pending case involving a child (divorce, SAPCR, modification) and child support has been established.  However, like most parents you are concerned about the future—what happens when the children go to college, how will I afford their expenses then?  Most people say that you can “save the child support” but that is not ideal.  Children are expensive and it is highly likely that you will spend all of the child support and then some with all of the things that come up throughout their lives until they turn 18 or graduate from high school.  Child support ends on “removal of the child’s disabilities for general purposes, the marriage or death of a child, or a finding by the court that the child is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program.”  In the Interest of W.R.B. and B.K.B., Children.  So, what are your options to ensure that your children can get a college education and have support from the other parent?

This issue is addressed in In the Interest of W.R.B. and B.K.B., Children from the 5th District Court of Appeals in Dallas.     There, the Dallas Court of Appeals addressed the issue of post-majority support which is defined as applying “only to a non-disabled child who is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program” Tex. Fam. Code Section 154.001(a).  Therefore, this creates or allows for a specific scenario in which the other parent would still be required to make support payments.  In this case, the Court held that the trial court cannot order post-majority support on its own volition but the parties can agree to post-majority support in writing.  In the agreed modification orders, the parties had done just that.  Therefore, the Court of Appeals held that it was proper for the trial court to render the order of post-majority support.  However, the issue then became that the obligor parent stopped paying the post-majority expenses and so the recipient or obligee parent filed an enforcement action seeking reimbursement of all of the expenses, attorneys’ fees and interest.

The Dallas Court of Appeals held that for post-majority support, this is after the child ages out and was based purely upon the parties’ agreement and so therefore it is not enforceable in a family law court under the Texas Family Code.  Rather, the proper avenue is breach of contract.  This is because the agreed orders, with respect to the post-majority support, are considered a contract because it is an agreement of the parties not based upon legal authority.   This is unlike the issue of child support that was ordered which remains enforceable even post-aging out of the children because the Court still maintains jurisdiction over that issue as it was awarded under the family code.

If there is an allegation that either you or the other parent is abusing an illegal controlled substance, then a drug test can be requested. Typically, the testing will occur with Forensic DNA & Drug Testing facility in Dallas and if requested by either party, then the court will order both parties to participate and pay for their respective drug tests. However, sometimes, the court will only order the one party accused of using an illegal substance to take the drug test and order that the requesting party pay for the drug test with the caveat that if the testing party has a positive result, then they must reimburse the requesting party the drug testing fee.

If you fail a drug test, or if the other party fails a drug test, there are consequences in a child custody case. The court could order that the failing party have little to no visitation with the child and if any visitation, then it will be supervised. Sometimes, the judges will ask if there is a family member who could do the supervision of the visits with the child. If there are not, then the extreme form of supervised visits is either Family Court Services if in Dallas County or other court-approved supervision facility. Also, if there is a history of abuse of an illegal controlled substance, then the court could order that you participate in a rehabilitation program before the failing party has any access to the child. In fact, there could be several steps that the court puts in place for the failing party to complete before they have any visitation with the child. Again, most courts will order supervised visitation with the child but it could be very limited to a number of hours per month.

Courts have also started putting injunctions in place to the effect that a party is to not consume an illegal controlled substance within a certain period of time (example 72 hours) before possession or access to the child begins. This is also something that can be requested by either party. Additionally, in final orders, it can be ordered that you submit to random drug testing at any time in the future if requested by the other party and they pay the testing fee.

Congratulations, you have made it to mediation stage in your family law case. For many, this is the step to final orders in your case. That is, if you have a successful mediation. There are a few things that you and your attorney can do to ensure this is the case for you.

(1) Many mediators send out a mediation packet to the attorneys/parties once the mediation is scheduled. This mediation packet should be taken seriously and completed to your utmost ability. It gives the mediator information about you, the other party, and the issues at hand as well as your stance on those issues. Some mediators go into more depth than others. The more that is addressed right off the bat, the better.

(2) If your case is a divorce with property issues, make sure you have at least a sworn inventory and appraisement from both sides so that you can make sure all of the property is addressed. To be more organized, you could make a spreadsheet of assets and debts, with a column for the ones you would like and the ones you would like for your spouse to have, as well as a column to check off whether or not the asset/debt is addressed in the mediation settlement agreement.