I Don’t Like My Mediated Settlement Agreement -MSA! What Can I Do?

By Dugan P. Kelley

A mediated settlement agreement (MSA) usually resolves a family law case.  Kelley Clarke PC can help evaluate your mediated settlement agreement and/or your current family law situation.  Most family law cases get settled, and the usual way the case settles is through a mediated settlement agreement.  Depending on the circumstances of your case, settlement at mediation can be euphoric or very painful.  Can you change the mediated settlement agreement after you sign it?  Generally, NO, you cannot change a mediated settlement agreement over the objection of your ex-spouse after you have both signed it.

Requirements for the Court to Enforce Mediated Settlement Agreements – MSA:

The Texas Family Code §153.0071(d) specifically allows the Court to enforce mediated settlement agreements IF:

  • provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
  • is signed by each party to the agreement; and
  • is signed by the party’s attorney, if any, who is present at the time the agreement is signed.

If a mediated settlement agreement (MSA) meets the requirements above, you are entitled for the Court to enforce the mediated settlement agreement (MSA) and enter judgment according to its terms.  However, there are limited exceptions where the Court will allow you to revoke and/or cancel the mediated settlement agreement.

Necessary Requirements to Revoke or Cancel a Mediated Settlement Agreement – MSA:

There are certain situations where a Court can choose to not enforce a mediated settlement agreement.  Texas Family Code §153.0071(e-1).  The Court must find the following:

(1) a party to the agreement was a victim of family violence, and that circumstance impaired the party’s ability to make decisions; and

(2) the agreement is not in the child’s best interest.

“Family violence” is defined also by the Texas Family Code as: (1)  an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; (2)  abuse by a member of a family or household toward a child of the family or household; or (3)  dating violence.  § 71.004.  So, if you want to change, cancel, or revoke your mediated settlement agreement, you will need to prove that you are a victim of family violence.  You can prove this by documents, your testimony, or even admissions by your ex-spouse about their past treatment of you.

Next, you need to prove the prior abuse you suffered “impaired” your decision in entering the mediated settlement agreement.  Again, this is usually proven through your testimony (either on the witness stand or through a sworn affidavit).  You will need to persuade the Court that being a victim of family violence had an impact on you and that is why you entered into the mediated settlement agreement.  For example, perhaps you were too afraid to face your ex-spouse at trial, your ex-spouse intimidated you into agreeing to the mediated settlement agreement, or you were unable to separate the emotions involved in being a victim of family violence from the contents of the mediated settlement agreement.

Lastly, you will need to prove that the mediated settlement agreement is not in your child’s best interests.  The Family Code is clear: “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”   § 153.002.  The Court will determine what is in your child’s best interests and it will look at a number of factors.  The most cited case regarding best interest is the Texas Supreme Court’s 1976 decision Holley v. Adams.  The Court set forth a non-exhaustive list of these factors as:

  1. the desires of the child;
  2. the emotional and physical needs of the child now and in the future;
  3. the emotional and physical danger to the child now and in the future;
  4. the parenting abilities of the individuals seeking custody;
  5. the programs available to assist those individuals to promote the best interest of the child;
  6. the plans for the child by these individuals or by the agency seeking custody;
  7. the stability of the home or proposed placement;
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
  9. any excuse for the acts or omissions of the parent.

Kelley Clarke PC will Help With Your Family Crisis and Mediated Settlement Agreement – MSA:

It is vital that you have good legal representation to help you understand what evidence will be needed to present to the Court in order to revoke or cancel your mediated settlement agreement.  If you can demonstrate that you fit all the requirements above, the Court will grant your motion to revoke the mediated settlement agreement.

Please don’t hesitate to contact Kelley Clarke PC with your family law matter.