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You are in the middle of a divorce or custody case and you attended mediation with the other party in which you successfully settled the issues. Upon doing so, you signed a mediated settlement agreement. You think that the case is over and you leave feeling somewhat relieved not having to fight anymore. However, issues could still arise. The question is whether those issues or arguments will be successful. Needless to say, you will need to fight them to ensure that the MSA, your agreement that you worked so hard for, will remain in effect and be enforced by the court.

Mediated Settlement Agreements (MSAs) are classified as binding contracts between the parties as long as it satisfies certain requirements. In fact, Texas Family Code Section 153.0071(d) states that “a mediated settlement agreement is binding on the parties if the agreement” provides in large, bold, underlined lettering that the agreement cannot be revoked; is signed by all parties to agreement; and is signed by all party’s attorneys. You may think that if you have all of this met that you would not have to deal with any further issues. Unfortunately, this is a misunderstanding. If the other party is not happy with the MSA and the trial court’s enforcement of it, then they can appeal that decision. This is when you must look further into the statute, and it seems as though you are still protected. That is, Section153.0071 (e) states that “If the mediated settlement agreement meets the requirements in (d), then a party is entitled to a judgment notwithstanding another rule of law.” Thus, this means that if you satisfy the previous mentioned requirements, then this agreement is enforceable despite another rule of law such as contract law.

An example of where an MSA can be attacked is in a recent opinion from the Dallas 5th District Court of Appeals in In the Interest of C.H.C. and S.M.C., Children where a wife and husband entered into a MSA for the modification suit. However, after the trial court enforced the MSA and ruled on the remaining issues (which can be done according to case law and this Court), the wife was not happy. Thus, she appealed and argued on several issues that the MSA was not enforceable under contract law. In fact, she asserted such contractual defenses as absence of consideration, failure of consideration, mutual mistake, no meeting of the minds, missing terms, and ambiguity. The Court held that it will not make a decision on whether any of these defenses apply to an agreement under 153.0071. Rather, the Court addressed each defense and found the arguments to be wanting and wrong.

According to Texas Family Code Section 7.001, makes a “just and right division” of the community estate when parties divorce the Court. For most parties, this typically means an equal split of the community estate as to the assets and debts. However, there are some instances in which the Court could award a disproportionate share of the community estate and the statute allows for such as it does not mandate an equal division. In fact, the trial court has a lot of discretion in dividing the community estate.

For a disproportionate share of the community estate, the controlling opinion was issued in 1981 by the Texas Supreme Court in Murff v. Murff. There, the Court set out several factors for the courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses’ capacities and abilities; benefits which the party not at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses’ educations; spouses’ relative physical and financial conditions; spouses’ separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least one year); or parties’ attorneys fees.

In addition to these factors, there are also additional causes of action in divorces which would allow or create argument for a disproportionate share of the community estate.

When parties divorce the Court, makes a “just and right division” of the community estate according to Texas Family Code Section 7.001. For most parties, this typically means an equal split of the community estate as to the assets and debts. However, there are some instances in which the Court could award a disproportionate share of the community estate and the statute allows for such as it does not mandate an equal division. In fact, the trial court has a lot of discretion in dividing the community estate.

For a disproportionate share of the community estate, the controlling opinion was issued in 1981 by the Texas Supreme Court in Murff v. Murff. There, the Court set out several factors for the courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses’ capacities and abilities; benefits which the party not at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses’ educations; spouses’ relative physical and financial conditions; spouses’ separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least one year); or parties’ attorneys fees.

In particular, disparity of earning power has become a major factor in divorces especially those in which one spouse has been the breadwinner of the family. For instance, the Houston 1st District Court of Appeals held in Robbins v. Robbins that the trial court was correct in its decision to award the wife 58% of the community estate and the husband 42% of the community estate. The Court concluded this was because the wife had been out of the working community for quite some time and the husband had a much greater earning capacity than the wife.

When parties divorce the Court, according to Texas Family Code Section 7.001, makes a “just and right division” of the community estate. For most parties, this typically means an equal split of the community estate as to the assets and debts. However, there are some instances in which the Court could award a disproportionate share of the community estate and the statute allows for such as it does not mandate an equal division. In fact, the trial court has a lot of discretion in dividing the community estate.

For a disproportionate share of the community estate, the controlling opinion was issued in 1981 by the Texas Supreme Court in Murff v. Murff. There, the Court set out several factors for the courts to consider when they are making a just and right division of community property and debts. The factors are: the disparity of incomes or earning capacities of the spouses; the spouses’ capacities and abilities; benefits which the party at fault would have derived from a continuation of the marriage; business opportunities of the spouses; spouses’ educations; spouses’ relative physical and financial conditions; spouses’ separate estates (if any); nature of property to be divided; fault in the breakup of the marriage (adultery, cruel treatment, other spouse is convicted of felony and imprisoned for at least one year, abandonment for a year or more, living apart for at least three years, other spouse is confined to a mental hospital for at least one year); or parties’ attorneys fees.

In addition to these factors, there are also additional causes of action in divorces which would allow or create argument for a disproportionate share of the community estate.

Community property is defined as anything acquired during the marriage. Separate property, however, is anything acquired before marriage and anything acquired during the marriage by gift, devise, or descent. Your separate property is just that–yours. If you are married and you divorce your spouse, your separate property remains yours. In fact, Texas courts are prevented from dividing separate property between spouses.

If you are married with separate property and you love and trust your spouse to the point that you would like for them to also share in the interest of your separate property, to ensure that this is a legal interest, you must convert the separate property into community property. If you fail to do so, then the spouse you love and trust is out of luck when it comes to the separate property that has not been properly converted. This is demonstrated by the Dallas 5th District Court of Appeals in In Re the Estate of Olen F. Cunningham, Deceased. There, the husband had entered into an “Agreement to Establish Right of Survivorship in Community Property” with his wife. The problem was, as the Court held, the agreement did not meet the requirements of Texas Family Code Sections 4.203 and 4.205.

Per Texas Family Code Section 4.203, if you want to convert your separate property into community property, the agreement must “be in writing and be signed by the spouses; identify the property being converted; and specify that the property is being converted to the spouse’s community property; AND it is enforceable without consideration.” You may think (as well as several other unknowing persons) “I have put the home that I brought into the marriage in both of our names so surely that means it is our community property.” However, according to the statute and only caselaw on the subject, you are wrong. That is, the statute goes on further in subsection (b) and states “the mere transfer of a spouse’s separate property to the name of the other spouse or to the name of both spouses is not sufficient to convert the property to community property under this subchapter.”