Will a Texas judge approve a mediated divorce settlement agreement that significantly favors one spouse over the other, like when one spouse gets sixty percent (60%) of the community property and the other gets forty percent (40%)? Yes, with the right preparation through a competent and qualified divorce mediator!
A foundation of divorce mediation is the couple’s right of self-determination to make whatever divorce agreements they wish. However, a judge cannot rubber stamp a mediated settlement agreement simply because a couple sat down with a mediator, put something on paper, and signed it. For a Texas judge to approve a divorce decree which incorporates the terms of a mediated agreement, the judge must be certain each spouse fully understood and consented to the mediated agreements, and made them voluntarily, no matter what the agreements are.
The law requires a Texas judge to make a “just and right” division of community property in a litigated divorce (where the spouses have been unsuccessful reaching out of court agreements). “Just and right” does not have to mean equal or 50/50, although unless there is a very good reason to do otherwise, most Texas judges will split community assets as close to 50/50 as possible. Couples who divide community property equally or very close to equally in a mediated settlement rarely cause a judge to question whether the agreements were voluntary.
On the other hand, a couple who has a significantly unequal property division that varies from the law and the judges’ customary practices should be prepared to answer if a judge questions whether the mediated agreement was voluntary (even if they reached it amicably). When a couple mediates a divorce, the outcome of mediation and the division of property between them is their mutual responsibility. A spouse in mediation is free to make any choice he or she wants, good or bad, equal or unequal, as long as the other agrees and both do so with full knowledge and consent. Nevertheless, the vast majority of judges and lawyers do not believe anyone would voluntarily, knowingly, and freely consent to give up more than the portion of a community interest to which they may be legally entitled.
Therefore, the mediator’s responsibility for every settlement, not just unequal ones, is to ensure before the couple makes final decisions that each spouse: 1) has been fully informed of the law; 2) has thoroughly explored settlement options; 3) understands completely the pros, cons, and short and long term consequences of decisions (including tax implications); and 4) has fully consented and has not been forced or coerced into an agreement.
The more “lopsided” the mediated settlement, the more work the mediator has to do to make absolutely certain he or she has covered all of these bases with each spouse so the judge feels comfortable the agreements the couple made were voluntary. A competent, professional divorce mediator should ensure each spouse is well educated during the mediation process so that when they go before a judge for approval of the agreements, each of them can confidently: 1) explain the logical reasons why each made his or her decisions; 2) show an understanding of what the law offers and what he or she is gaining or giving up in the settlement; and 3) demonstrate the agreements were not only well informed but entered into freely of their own will.