What is a Rule 11 agreement?

Rule 11 of the Texas Rules of Civil Procedure allows parties and their attorneys to enter agreements regarding a case. For example, a Rule 11 agreement allows parties to agree how bills will be paid; who will have possession of the kids for a period of time; or that a discovery response deadline be extended. The requirement of a Rule 11 agreement is that it be between parties or their attorneys, be in writing and filed with the court, or made in open court on the record. Reading an agreement into the record in open court has the same effect as a written agreement because the court reporter’s transcription may be reduced to writing. 

Can a Rule 11 agreement be used to settle an entire case?

Rule 11 agreements can be used to when finalizing an entire case. This is most often done when parties appear in court and read their Rule 11 agreement into the record. The court will then render judgment by officially announcing its decision in open court or by written memorandum filed with the district clerk. The trial court must clearly indicate its intent to render judgment at that time rather than at a time in the future. A judge generally states: “I accept and approve the agreement of the parties, and I render it as an order the court.” If the court only approves the agreement and does not render it an order then the judgment is not finally rendered.

Can you revoke consent to a Rule 11 settlement agreement before judgment is rendered? 

A party has the right to revoke consent to a Rule 11 settlement agreement at any time before the judgment is rendered. In order for a valid consent judgment to exist, the parties must explicitly and unmistakably give consent at the time the trial court renders judgment on that agreement. Consent must exist at the very moment the court undertakes to make the agreement the judgment of the court. To that effect, a party can withdraw consent to the agreement by filing a pleading prior to rendition of judgment that revokes consent. A party can also file a motion opposing entry of judgment. A party can even stand in court before judgment is rendered and state: “I revoke consent to the agreement.”

The Texas Fifth Court of Appeals stated in 2003 that “[a] court cannot render a valid agreed judgment when consent of one of the parties is wanting.” Hawkins v. Howard, 97 S.W.3d 676, 679 (Tex. App.—Dallas 2003, no pet.). The Texas Supreme Court previously stated: “When a trial court has knowledge that one of the parties to a suit does not consent to a judgment, the trial court should refuse to sanction the agreement by making it the judgment of the court.” See Quintero v. Jim Walter Homes, 654 S.W.2d 442, 444 (Tex. 1983)). The lesson for attorneys and parties is that you need to seek rendition of judgment based on the Rule 11 agreement as soon as possible. This limits the possibility that the settlement agreement can later be revoked.

 

 

Today is April 1st which it means today is the deadline for the non-primary parent/possessory conservator to timely designate your period(s) of extended summer possession. Summer 2021 is the time for everyone to make up the vacations you missed last summer! You want to send your formal designations today so you and your kids can enjoy a trip or staycation.

If you are the non-primary parent/possessory conservator then you must submit, in writing, the dates that you wish to have extended summer possession with the child/children by 11:59 pm tonight. Failure to submit your desired dates on or before April 1st may result in you having no choice regarding your extended summer possession this year.  Most orders state that if the non-primary parent/possessory conservator fails to designate his or her extended summer possession on or before April 1 then the extended summer possession for that year shall begin on July 1 at 6:00 p.m. and end on July 31 at 6:00 p.m.

Key Points to Remember when Selecting Dates for Summer Possession:

  • If you are the mother, do not select dates that interfere with Father’s Day Weekend, which is the weekend of June 18-20, 2021;
  • Please remember that all summer possession must be completed within a specified time period. The time period for exercising summer possession begins on the day after the child’s school is dismissed for the summer vacation and ends no later than seven days before school resumes at the end of the summer vacation. Be sure to look at your child’s/children’s school calendar to ensure that you comply with this requirement. The school calendar applies whether your child is attending school virtually or attending school in person.
  • If you reside within 100 miles or less from the primary residence of the child, then you can select 30 days for extended summer possession. You do not have to select 30 days in a row. You can break up the days into no more than two separate periods of at least seven consecutive days each.
  • If you reside over 100 miles apart from the primary residence of the child, then you can select 42 days for extended summer possession. You do not have to select 42 days in a row. You can break up the days into no more than two separate periods of at least seven consecutive days each.
  • Remember that you must always look at your specific order for guidance. The above points are the general terms under the Texas Family Code.

How Do I Give Notice?

Again, check your order for the form of notice which is usually in the General Terms and Conditions section of your order. Traditionally, written notice includes electronic mail, snail mail, and sometimes text message. If you’re ordered to communicate only through Our Family Wizard or another parenting platform like App Close, be sure to give notice via that platform. A good rule of thumb when designating your extended summer possession is send the notice in as many ways as you can so there is never a question as to your timely designation.

What Else Do I Need to Know?

The non-primary parent/possessory conservator still gets his/her 1st, 3rd, and 5th weekends of the summer months, as well as 30 days of extended summer possession. The primary parent in turn gets to pick one of the 1st, 3rd, and 5th weekends, which would have been the non-primary parent’s weekend, to have possession of the children as well as one weekend during the non-primary parent’s 30 days of extended summer possession if the non-primary parent is exercising all 30 days in one block.

A question that is frequently asked is “can I use a weekend of summer possession in addition to my extended summer possession to make my time with the children 32 days?”  The answer is yes you can as long as your order doesn’t have “no stacking” language. In other words, if your order says you cannot “stack” regular weekends on top of extended summer time, then you have to include your regular 1st, 3rd, and 5th weekends in your selected summer time. If you don’t have “no stacking” language, however, you can put your regular weekends before or after your selected extended summer dates.

Last week I gave a presentation on Facebook live: Attorney’s Fees After Rohrmoos. You can watch the live video here: Attorney’s Fees After Rohrmoos video. The talk is credited by the State Bar of Texas for 1.00 CLE credit. I give the number at the end of the presentation so after you watch it, you’ll have that number to self-report your credit. Here’s a link to the Rohrmoos case.

Tips after Rohrmoos about attorney’s fees:

  • Keep contemporaneous billing records in all cases, including hybrid and contingent fee cases;
  • Try to stipulate to the fee award prior to trial;
  • Enter your fee agreement and billing records into evidence at trial;
  • Be careful about redacting your entries in the fee agreement;
  • Introduce evidence to explain why all entries included were reasonable and necessary;
  • Consider getting an outside expert to support or challenge the fee request.

During the presentation, I promised to provide a couple of things I’ve drafted and here they are:

Summary of attorney’s fee testimony

Brief on attorney’s fees (property case)

Brief on attorney’s fees (SAPCR)

I previously wrote about the Rohrmoos case in this blog post: Proving up attorneys fees

In 2017, the Dallas Court of Appeals quietly and with zero fanfare released the In re Sting Soccer opinion. It is an unpublished memorandum opinion, but it chocks a huge, unexpected punch to discovery-as-we-knew-it. Basically, it makes a lot of our standard objections illegal, with the effect of broadening the scope of discovery immeasurably. Note that no other COA has approved or disapproved of it and there’s been no weighing-in from SCOTX either. Even so, at least in the Dallas area — but probably state-wide — we should pay close attention to this case.

Here’s the video from my live Facebook CLE presentation on the topic — HERE.

Here’s the download white paper summary of In re Sting Soccer — discovery responding and objecting white paper.

Link to In re Sting Soccer case — HERE

With the start of the new year comes new discovery rules from the Supreme Court of Texas. The significant changes to the Texas Rules of Civil Procedure apply to cases filed after January 1, 2021.

If a new client’s case is filed after January 1, 2021, there are certain documents and information that you are now required to provide to the other side no later than 30 days after filing an answer or making a general appearance. Previously, you were not required to provide the below information until formally requested by the opposing party or as required by local standing order. Now, you must provide the information or risk not being allowed to fully present the case at a hearing or trial.

Persons with Knowledge 

A person with knowledge is someone who has knowledge of relevant facts about the case. Obvious people are the client’s family members and friends. Other people that have knowledge about the case might include teachers or coaches of the client’s children; doctors; counselors; financial advisors; co-workers; or neighbors of the client. Any person who could possibly be a witness in the case or provide testimony must be listed as a person with knowledge. While there is an opportunity to update this list throughout the case, the initial “Persons with Knowledge” list must be provided or you risk witnesses being excluded from testifying.

Financial Documents 

If the case is a divorce (with or without children), there are certain client financial documents that must be provided. The time period for the following documents is the past two years. If the client has been married less than two years, the required time period is since the date of marriage:

    • All bank statements, including any accounts on deposit with any financial institution, savings and loan institution, credit union, or brokerage.
    • All statements for any pension plan, retirement plan, 401(k), SEP/IRA, profit-sharing plan, or other employee benefits account.
    • Documents including declaration/benefits page and premium notices for all life, casualty, auto insurance, umbrella, liability, and health insurance.
    • Tax returns for the past two years including IRS Forms W-2, 1099’s, and Schedule K-1’s.

Property Documents

The following property documents are required if the case is a divorce (with or without children). As with the financial documents above, the time period for the property documents is the past two years unless the marriage is less than two years. If the client does not have the documents in his/her possession, the client should contact the mortgage lender, title company, and/or County Clerk’s office in order to take every reasonable effort to obtain documents:

    • Documents relating to real estate owned or leased by the client and client’s spouse, including property owned prior to marriage and property that was inherited.
    • Closing documents.
    • Deeds.
    • Mortgage statements.

Cases with Children

If a child is involved in the case, whether a divorce, suit affecting the parent-child relationship, or child support, the client must provide the two most recent paystubs. The following documents for the past two years are also required:

    • All policies, statements, and the summary of benefits for medical, health, and dental insurance available for a child or client’s spouse.
    • Tax returns for the past two years including IRS Forms W-2, 1099’s and Schedule K-1’s.

While there are some exceptions for cases such as protective order cases, generally the disclosure of the above documents is not optional. For a more complete summary of the new discovery rules, you can read Michelle May O’Neil’s Summary of New Discovery Rules 2021 or view her video post update.

(This post has been updated to reflect the current and final information about the new 2021 discovery rules.)

The Texas Supreme Court has released new discovery rules that will be effective January 1, 2021. While these rules are still under review and subject to change, they are so significant that they warrant review now even if they get tweaked over the next couple of weeks. Here is a FREE download summary of the final version of the new rules that I have prepared: Final summary new discovery rules 2021

Read the final version of the rules that are effective 1/1/2021 here. (Read the Texas Supreme Court’s first draft proposed rules here.)

Watch Michelle O’Neil’s 1 hour presentation on the first draft of the new rules (recorded live) here. Her video update on the final version of the rules is here.

The United States Supreme Court has moved a giant leap forward in LGBTQ+ rights with the latest opinion in Bostock v. Clayton County, Georgia. To say this is a HUGE deal is an understatement. In 2015, when the Court solidified same-sex marriage, that right only applied to a smaller subset of people who wanted to marry a person of the same sex. This opinion, however, applied to a much more broad group because pretty much everyone has a job. So, saying that a person cannot be fired for their sexual orientation, gender identity, or gender expression, helps many, many people.

The central dispute in the cases (grouped together as Bostock v. Clayton County, Georgia) is over whether the term “sex” in Title VII (the federal anti-discrimination law that applies to workforces of 15 people or more) includes sexual orientation and gender identity. The law doesn’t mention “sexual orientation” or “gender identity” at all, but Justice Gorsuch, speaking on behalf of the 6 justice majority, said that doesn’t matter. He concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of … sex” and the Court found that the word sex includes sexual orientation, gender identification, and gender expression. This is the first major case on transgender rights. Prior to the decision, it was legal in more than half of the states (including Texas) to discriminate against a person for being gay, bisexual, or transgender. Now, workplace protections extend to millions of people across the nation. This was the first case decided by the Court on LGBTQ+ rights since the retirement in 2018 of Justice Anthony Kennedy, who wrote for the majority in all four of the Court’s prior gay rights decisions.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Justice Kavanaugh filed a dissenting opinion. Noteworthy, he stated public support for gay rights, but disagreed that the correct solution to the case was through the judicial branch. Instead, he felt that Congress should modify the law as Congress sees fit instead of the Court addressing the issue.

“…it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

Justice Alito filed a lengthy and extensive dissent, reviewing every law with language similar to the Civil Rights Act that will be affected by the decision. Alito, with Justice Thomas joining, believed that the law should be interpreted based solely on the specific words in the law (which do not say “sexual orientation”) and based on the meaning the law had at the time it was enacted in 1964. The common understanding of sex discrimination in 1964, Justice Alito wrote, was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. If Congress wanted to protect gay and transgender workers, he wrote, it could pass a new law. Alito’s dissent provides a lengthy summary of the other laws with similar language that could be effected by the majority opinion.

The Bostock decision could have reverberations way beyond employment discrimination law. Other areas of federal law also prohibit discrimination based on sex — the Fair Housing Act prohibits it in housing; the Equal Pay Act prohibits it in your paycheck; Title IX prohibits it in education; the Equal Protection Clause of the Constitution prohibits it in government actions. Taking today’s ruling where it inevitably will lead means that each of these areas of law (and every other that applies to sex discrimination) should eventually prohibit discrimination against LGBTQ people as well. We’re not there yet, as future cases will have to decide these matters. But, based on today’s rulings, LGBTQ people should get more and more protections against discrimination in the near future.

As to our area of family law, I think the Bostock case means that judges in parenting disputes should not be able to base their decision on the parent’s sexual orientation, gender identity, or gender expression. In other words, a judge cannot deny a parent custody or restrict his or her access because of the parent’s sexual orientation. A judge cannot deny a parent a relationship with his or her children because of being transgender. A judge cannot use whether a parent dresses masculine or feminine as a basis for critique of parenting roles. This brings forward the roles of LGBTQ+ parents in the family law context from Obergefell and Pavan.

Link to the Court’s opinion in Bostock v. Clayton County, Georgia.

Oyez is my favorite website for all things Supreme Court. Here is their link to Bostock.

SCOTUSblog has many articles of commentary about the decision as well as a link to the briefing by the parties and amici.

Read the NY Times article about the Bostock Decision here.

Mediation is an alternative dispute resolution process that has become a requirement in most family law cases. A mediator is a neutral third-party who helps facilitate the settlement negotiations between the parties. Generally, one party and that party’s attorney stay in one room; the other party and that party’s attorney stay in another room; and the mediator goes between the rooms. The parties can conclude the mediation with a Mediated Settlement Agreement (“MSA”). This is an irrevocable settlement agreement that is filed with the court. Either party can seek a final judgment on the MSA and have a decree or final order entered.

Can you mediate prior to filing for divorce?

Mediation most often occurs toward the end of a case. The parties may have been through one or more hearings; conducted extensive discovery; attended depositions; and were probably set for final trial. Can mediation occur prior to even filing a divorce petition? In October 2019, the Texas Supreme Court held in Highsmith v. Highsmith that a Mediated Settlement Agreement can be executed prior to the filing of petition for divorce. 587 S.W.3d 771 (Tex. 2019). The Texas legislature has stated: “It is the policy of this state to encourage the peaceable resolution of disputes . . . including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.” Tex. Civ. Prac. & Rem. Code § 154.002. Pre-litigation mediation gives parties the opportunity to settle their issues even before filing their case with the court.

How does pre-litigation mediation work?

Mediation requires the willingness of two parties to submit themselves to the mediation process. To mediate before filing a divorce, both parties need to be onboard with attending mediation. This is not always easy at the start of a divorce. Emotions are high; there may be hurt feelings; and trust may be broken. One or both parties may also already have an attorney. If a party does have an attorney, the attorney can coordinate scheduling mediation. Case law does establish a third-party mediator must mediate in order to obtain a Mediated Settlement Agreement. You cannot obtain an MSA from the parties simply sitting down and writing out their agreement together. The parties must go through the mediation process with a mediator. The mediation can be scheduled for a half-day (4 hours); full day (8 hours); or sometimes by the hour depending on the mediator. If neither party is choosing to use an attorney, you can hire a family law mediator on your own.

What information do you need to prepare?

          As with any divorce, it is important that the parties have a clear idea of their finances such as: 1) what accounts are community property?; 2) what assets are separate property?; 3) what debts are owed?; and 4) what personal property exists? A general inventory of assets and liabilities with corresponding account numbers will help ensure no property is overlooked during the division. The parties should also have an initial wish-list of the property division. The more information you have gathered prior to mediation, the more productive the mediation time will be.

Is pre-litigation mediation right for you?

Mediation is a series of movements. Party A starts with a position. Party B starts with a position. Sometimes the positions are close, and sometimes they’re not. The mediator helps the parties move off their starting positions and closer to an agreed upon settlement. Mediation, at its core, is a voluntary process though. The voluntariness and willingness of the parties to participate in dispute resolution is the key to a mediation’s success. This is especially true in pre-litigation mediation. Pre-litigation mediation asks parties to mediate before a legal case has even been filed with the court. Parties will most often attend pre-litigation mediation when they are close to settlement on their own but need some assistance finalizing details. Parties may also attend pre-litigation mediation when their estate is not complex or when they just don’t have the funds for a complex litigation. Parties can also attend mediation even when they’re nowhere close to an agreement, as long as both parties are willing to submit to the mediation process.

What happens after I get a Mediated Settlement Agreement?

When you reach a settlement and have a signed Mediated Settlement Agreement, your next step is to file for divorce. Again, if a party has an attorney, the attorney will handle the filing of the petition for divorce. The other party can sign a Waiver of Service meaning service of the petition is not necessary. A Final Decree of Divorce must then be drafted based on the Mediated Settlement Agreement. A judge will sign the decree once signed by all parties and filed with the court. It is important to remember that once an MSA is signed, you cannot wake up with buyer’s remorse the next day and revoke your agreement. The agreement in a signed MSA is the agreement on which the court will enter judgment.

Mediation is a powerful tool in the divorce process. Under the right circumstances, pre-litigation can be successful and save you time, money, and help you reach resolution in your divorce.

 

You’ve been in quarantine with your spouse for six weeks, and you’re seriously considering filing for divorce. One question to consider prior to filing is: “What is my plan?” That question may seem almost unanswerable right now. Six weeks ago, we all had plans which were then derailed by COVID-19. Within a matter of days, children were home from schools; spouses were confined to the home; and divorced parents had to adjust possession schedules. The past weeks with your spouse may have further strained an already difficult relationship. Before rushing to file for divorce, consider the following:

  1. What financial resources are available?

Generally, when you file for divorce, you ask the court to allow one spouse to stay in the marital residence and order the other spouse to move out. This is done at a temporary orders hearing. In order for your spouse to move out, however, the financial resources have to be available to support a second home like an apartment or rental house. As many as 78% of families live paycheck to paycheck. This can make it difficult to support two households, especially if one spouse lost a job in the past six weeks. Consider the financial logistics prior to filing for divorce. You may also need to consider alternatives to two separate and independent households such as moving in with relatives.

  1. Can both spouses continue to reside in one home during divorce?

Even before COVID-19, many spouses chose to remain in one residence until the divorce finalized. Now, spouses are having to remain in one residence due to financial constraints; needing to sell the residence; or needing to give a spouse time to find a new job. There are many reasons why spouses choose to remain in one house until the divorce is finalized. As long as you and your spouse are able to cohabitate without endangering yourself or your children, and as long as a court has not ordered otherwise, there is no rule that says you can’t remain in the same residence.

  1. How is child support going to be affected if my spouse lost a job?

The child support amount that can be ordered will be affected if the paying spouse is currently unemployed. The amount of child support ordered is a mathematical calculation set forth in the Texas Family Code. If the person ordered to pay child support is receiving unemployment benefits, the child support will be set based on the unemployment benefit amount. This is most likely less child support than if child support were calculated based on the paying spouse’s prior salary. Once child support is ordered in a final order, it generally cannot be changed for three years or until the new child support amount differs by $100 or 20%. Changing child support requires a modification, however, which is a new litigation with its own set of expenses. Analyze whether your spouse is going to have a new job in a few months. This may impact your decision of when to file for divorce.

  1. What about the retirement accounts and investments?

Everyone’s retirement account took a major hit the past two months. An account that was worth $100,000 may now only be worth $60,000. Other stock and mutual fund accounts may be valued significantly less too. An account that was worth $100,000 may now only be worth $60,000. Other stock and mutual fund accounts may be valued significantly less too. The court will make a just and right division based on all the community property. The court can only divide the property that exists though. It cannot take into account that the community estate may have been worth $40,000 more in February 2020.

Another consideration is that most counties have Standing Orders that go into place when a divorce is filed. One standing order is that you cannot take money from retirement accounts without the agreement of the other spouse or an order of the court. Keep in mind that unless your spouse agrees to withdraw retirement account funds, you may not be able to access those funds once the divorce is filed until there is a hearing on the issue.

Despite all the considerations, the highest priority is the safety of you and your children. If you are in a domestic abuse situation, you can always call the National Domestic Violence Hotline at 1-800-799-SAFE (7223). Don’t let the logistics of a divorce prevent you from getting out of a violent relationship. There are many variables when considering divorce, and you want to be prepared before making a decision.