Can you mediate and settle before filing for divorce in Texas?

One of the major impacts of the coronavirus pandemic has been the relationship between divorce statistics and the lockdowns and stay-at-home orders resulting from government attempts to reduce the spread of the virus. Many people have considered getting a divorce or projected to do so during the pandemic. I have written previously about how it appeared that divorce rates were increasing across the world and in our own country. This has not been a subject that I have talked about much in recent months, so at the beginning of today’s blog post, I wanted to go through greater detail and discuss if the pandemic has had any appreciable impact on the frequency with which people get have gotten divorces.

One of the key factors that led many people, including myself, to believe that divorce rates would increase during the pandemic was that the overall stress levels we were experiencing increased in the middle months of 2020. Typically, stress does not bring about positive results in a marriage relationship that is not doing very well. We can paper over difficulties in our marriage in various ways, but when we are forced to confront those difficulties and challenges, it is not always simple to hide them away. I assumed that being forced to confront those problems daily with your spouse in a home that you cannot leave very easily would increase divorce rates.

Based on recent information, the reality is that this has not proven to be the case. Rather than seeing divorce rates increase since the beginning of the pandemic, we have seen divorce reached below compared to previous years. All you need to do is search for information on the divorce rate in our country, and you will see that fewer people are getting divorced now, as a percentage, than at any time over the past generation or so. I was surprised and honestly happy to see that this was the case.

However, once I started to consider what this meant, some of my happiness went away. I began to consider that there may be some bad news in this update. The way I analyzed this report was that fewer people are getting married now than ever before. On top of that, fewer young people consider marriage and instead opt to remain single or raise children with the person they are not married to. Whether or not you believe that this trend means anything, I can tell you that, overall, married people tend to earn more money, live more stable lives, and live longer. These are more trends that you can look up to verify that I am telling the truth.

No matter where you come down on the debate over the impact of the current virus on divorce rates in our country, I think we can all agree that 2020 was a year that we are glad is behind us. Getting a divorce may have been the last thing on your mind at the beginning of 2020, only to see it become more of a reality as the year dragged on. If this sounds like you come up and you are now in the planning stages of a divorce that has not yet been filed, you should consider your options and determine the most practical path for you and your spouse to take. Even if you have not thought of her spouse as a teammate in some time, you should do so, at least for the duration of your divorce. Going into your case with this mindset will typically allow you to arrive at a more equitable solution in a shorter amount of time.

For starters, you should now be thinking about the major issues in your case so that you can best prepare for them when it comes to negotiations with your spouse. Keep in mind that most divorces settle rather than go to a contested trial before a judge. For many people, this is a surprise, given how prevalent we think litigation is in the family law world. While it is true that family law attorneys spend a great deal of time in court, it is often on relatively minor issues in a case rather than major hearings or trials. The vast majority of divorce cases settled in Texas before a trial period.

We can spend some time now talking about why this is likely the case. Before we get too speculative as to why divorce cases tend to settle more often than go to contested trials, I can tell you that my experience would indicate a major reason why this is is that people generally speaking run out of time, energy, and money to push forward to a trial. Usually, a trial in a divorce case means that your case would have pushed past six months in length, and multiple attempts to settle will have failed. These are cases either where you or your spouse cannot communicate well with the other or major issues that transcend the normal rates of settlement when it comes to divorce.

The longer you spend in a divorce, the longer you have to wait to begin your post of worse life. This means decisions that you would have made otherwise, such as where you will live, how you will co-parent with your ex-spouse after the divorce, when and if you will begin dating again in many other topics will be left up in the air because of the time you spend on your divorce. While it is almost silly to talk about in a blog post, the truth is that your post-divorce life will be much longer than your divorce case itself. With that said, you should consider your future while ensuring that your divorce ends up with an equitable result.

Another factor to consider why people generally speaking will settle their divorce case rather than proceed to a trial is due to a lack of energy by the end of the case. Many people begin their divorce with her on fire and a strong desire to push hard to achieve their goals. You may count yourself among this group that is eager to begin and complete a divorce. There is a big difference between finishing a difficult process short in finishing a long and difficult process. Your energy level will naturally fade the longer you have to endure something uncomfortable. A divorce, among other things, is uncomfortable. I can almost promise you that your energy and motivation to persist will go down as your case lengthens.

With that in mind, people spend a great deal of time in a divorce trying to fight battles that will have no bearing on their case’s ultimate result rather than focusing on the areas of their case that may help you and your spouse settle and move towards a conclusion. Rather than fighting over silverware in video games, two things I have seen more than one couple fight tooth and nail over, why not determine with your spouse what issues can be settled early and what issues will take some negotiation to get through? This is a much more productive use of your time and will allow you to use your energy for productive means.

Finally, people tend to run out of money by the end of a divorce. I’m not trying to scare or intimidate you into thinking that your bank account is going to be bled dry by your divorce. Rather, I am telling you that you will likely run out of the money you are willing to spend on a divorce by proceeding to a trial. The reality of divorce is that most people are surprised at how relatively inexpensive typical divorce costs. This does not mean that a divorce is cheap, but it means that horror stories you have probably heard from friends in the family about divorces as far as their costs are concerned are not always true. Whatever your budget is, you can likely find an attorney and a process in the divorce world that will get your case done within your budget.

The costs of divorce tend to escalate once you get to the later stages, including a trial. The reason for this is that attorney’s bill by the hour, and typically in a divorce case, you will have short periods where a lot of work is done and relatively long periods where little is billed to your case. You and your spouse can utilize these long periods where little is done as far as billable hours to negotiate between one another and eliminate the costs of using your attorneys to do so. This will not only help you save money, but it will also help you save time.

Toward the end of a divorce, you and your spouse will have a decision whether or not to settle your case in mediation or proceeding to a contested trial in front of a judge. This trial will represent only a few days, most likely but will represent hours and hours of billable work by your attorney and staff. Not only will you be spending all day in a trial with your attorney, but there will be a great deal of work and preparation ahead of that trial. All the while, your attorney in their staff will be billing you for all the work done on your behalf. Sometimes this work is necessary, but other times, it can be avoided if you take up the mediating challenge rather than litigating.

What are the chances that you can mediate before the divorce even get started?

All of this information brings us to the topic of the day. Namely, I would like to discuss whether or not you and your spouse can mediate your case and settle before even filing the divorce? You probably heard the old saying that putting the cart before the horse is essentially what you are doing if you consider mediating before even filing a divorce. There is nothing wrong with anticipating challenges and deciding that litigation is not for you. However, it would help if you learned the extent to which mediation can assist you and your spouse before your divorce begins.

Mediation allows you and your spouse to utilize an independent third party to help you settle the issues regarding child custody, visitation, child support, property division, and post-divorce spousal support. The thought is that if you can avoid going to court, then you can avoid spending a great deal of time and money on subject matter that is better left 2 a mediator than a family court judge. If you consider these sorts of thoughts, I commend you on doing your best to avoid protracted legal matters where your time can better be spent tending to your family.

The result of mediation is a mediated settlement agreement. This agreement is nearly impossible to alter or strike down once it is signed by all parties, their attorneys, and the mediator. Even though signing an MSA does not mark the true end of your divorce, it puts to bed any need to litigate your case in the future. The MSA is important because it requires you and your spouse to create a final decree of divorce that wholly reflects what was settled in mediation.

For the most part, mediation is a part of a divorce after the original divorce petition is filed. The question we have to answer today is whether or not attending mediation before the divorce, achieving an immediate settlement agreement, and then drafting a final decree of divorce before filing the divorce is acceptable under Texas family law. The last thing you would want to do is hammer out a very detailed mediated settlement agreement and then get to the middle of drafting a final decree of divorce and that you have to 1st file for divorce before doing either of these steps.

Fortunately, Texas’s law is fairly clear that you and your spouse can mediate and achieve a mediated settlement agreement before filing for divorce. The key is that the mediated settlement agreement must contain two elements to be upheld by a court. First, the mediated settlement agreement must state clearly that it is irrevocable. This means that neither you nor your spouse can go back to what was settled in an attempt to change things in the future. Next, both you and your spouse must sign the mediated settlement agreement, and your attorneys must sign as well. If all these aspects are in place, then you and your spouse would be in good shape to get a judgment from a family court judge on the mediated settlement agreement.

So, as it ends up, you and your spouse would be able to mediate and settle your case before filing for divorce in Texas. Whether or not you would be interested in doing so is a question best asked to an experienced family law attorney. To say nothing of the facts and circumstances of your case, it is unorthodox 2 mediate a divorce before it even begins. Essentially, you would be completing a marital property agreement and settling issues regarding child custody by mediating before the divorce even begins.

If you and your spouse are on good terms and are not necessarily planning a divorce but are interested in squaring some details away if you get divorced, then a marital property agreement may be best for you. A marital property agreement only deals with issues regarding your marital state in the division of property. Still, it can solve many issues that otherwise may take up a great deal of time in a divorce. Rather than dealing with these issues in mediation, when you and your spouse are not on good terms, you can settle property issues ahead of time and leave us plenty of time and opportunity to discuss your children’s issues in mediation if that is your choice.

Our attorneys and staff are big fans of mediation. We believe that you and your spouse should have the ultimate authority when it comes to hammering out a future for yourselves and your children. A trial court judge will do the best they can to come up with good orders for your family, but nobody will ever know your circumstances better than you do. We encourage people to take matters into their own hands and achieve just results themselves. Doing so allows you to save time, energy, and money that can be better spent elsewhere.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and the circumstances facing your family right now.

Book an appointment with Law Office of Bryan Fagan using SetMore


Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Divorce Wasting Assets[4]If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: 13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them” Today!

Financial Checklist[3]Get this FREE download about what you need to know before filing for divorce.

Other Articles you may be interested in:

  1. How to Draft and File an Answer to a Texas Divorce – Free Downloadable Forms
  2. Waivers – To sign or not to sign? The answer is don’t do it!
  3. 6 things You Need to Know Before You File for Divorce in Texas
  4. I Want a Texas Divorce but My Husband Doesn’t: What can I do?
  5. Am I Married? – Marital Status in Texas
  6. Can I sue my spouse’s mistress in Texas?
  7. 6 Tips – On How to prepare for a Texas Divorce
  8. Roadmap of Basic Divorce Procedure in Texas
  9. Child Custody Basics in Texas
  10. 6 Mistakes that can Destroy Your Texas Divorce Case
  11. 10 Quick Tips About Parental Visitation
  12. Does it Matter who Files First in a Texas Divorce?

Law Office of Bryan Fagan, PLLC | Spring, Texas Divorce Lawyer

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.

Share this article