What is the difference between an “Agreement Incident to Divorce" (AID) and a “Mediated Settlement Agreement" (MSA) in Texas? Both are legal documents a married couple can sign to put into writing their agreements about the terms of their divorce before the judge signs the divorce decree. But that is just about the only similarity, and the differences can mess up everything if spouses choose the wrong one.
What is an Agreement Incident to Divorce in Texas?
An “Agreement Incident to Divorce” under Tex. Fam. Code § 7.006 is a written document that contains spouses’ divorce agreements about spousal maintenance (alimony), and division of property, assets, and debts. It does not include agreements about child support or possession schedules (parenting time).
Spouses can write an Agreement Incident to Divorce. There is no requirement to have a lawyer, but spouses who write it themselves would be wise to have a family lawyer review it to make sure it follows the law and is enforceable.
There is a common misconception that an Agreement Incident to Divorce in Texas is airtight and legally binding if the spouses’ signatures are notarized. That simply is not true.
Any time before the judge signs the divorce decree in Texas, a spouse may unilaterally change an Agreement Incident to Divorce or back out of it completely. More importantly, the judge gets the final word whether the couple’s divorce terms are “just and right”. If the judge does not think so, the judge can ask the spouses to go back and revise the terms in the Agreement Incident to Divorce or simply make the spouses go to trial.
What is a Mediated Settlement Agreement?
A “Mediated Settlement Agreement” under Tex. Fam. Code § 6.602 is also a signed document that sets forth a couple’s divorce agreements. It may contain agreements about property and debt division, child and spousal support, and parenting plans. The only way a divorcing couple can get a Mediated Settlement Agreement is to sit down with a neutral third party (a “mediator”) who assists them to reach mutually acceptable divorce terms.
The Most Important Difference between an Agreement Incident to Divorce and a Mediated Settlement Agreement
The biggest difference (and the most important) between an Agreement Incident to Divorce and a Mediated Settlement Agreement is that a Mediated Settlement Agreement is legally binding on the spouses if the agreement:
- Says in boldfaced type or capital letters or underlined, that the agreement cannot be revoked ( taken back);
- 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 the Mediated Settlement Agreement meets all three of those rules, then neither a spouse nor a judge can change the terms before the judge signs the divorce decree (unless the judge refuses to recognize the Mediated Settlement Agreement because there is a history of family violence between the spouses or family).
Therefore, the safest bet to assure their divorce agreements will stand up is for divorcing spouses in Texas to work with a mediator and get a Mediated Settlement Agreement and forego the Agreement Incident to Divorce.