Parties can either agree or disagree to the terms of their divorce. Regardless of whether the parties agree to the divorce the final agreement must be accepted by the court and be incorporated into a final judgement for divorce by the court. The final order will be contract that is also an order. For instance, there are certain terms in a decree that may be enforceable under contract law that are not enforceable by contempt of court. If the parties enter into an agreement that provides for spousal maintenance over and above what is allowable under the Texas Family code then the non-breaching party has two possible remedies:
- Motion to enforce spousal maintenance – This remedy would be allowable for amounts provided for in the Texas Family Code.
- Breach of contract for contractual alimony. – This remedy would be for amounts over and above those set forth by the Texas Family Code.
Had the parties not agreed to the provision allowing for spousal maintenance over and above the amounts provided for in the Texas Family Code the Judge would not have included this is the order. Provisions for spousal maintenance over amounts set forth in the Texas Family Code are generally referred to as contractual alimony.
As stated above, depending on where you are in the divorce process when the breach occurs may have an effect on the remedies available to the non-breaching party. The remedies available will differ depending on the facts of the case. If one of the parties has revoked their consent to an agreement, prior to the acceptance of the agreement by the court, the agreement may not be enforceable. Conservatorship, possession, access and visitation, and child support are always subject to change. The reason that issues regarding child custody and support are always subject to change is that the ultimate ruling of the court must be in the best interest of the child. If events have changed such that a prior agreement or situation is no longer in the best interest of the child the court will deal with the change. The possibility of change in one portion of an agreement could change whether the division of the assets, debts, or spousal support is just and right upon divorce.
The court’s final order in the divorce must divide the property in a manner that is just and right. An agreement between the parties is always subject to the court disapproval if the court does find that the division of property is not just and right. Therefore, since certain portions of the agreement may change the entire agreement as a whole is subject to change prior to the acceptance of the agreement by the court. ). If court concludes the agreement is not just and right, then the trial court must either request the parties submit a revised agreement or set the case for a hearing.
Prior to entering into any agreement with your spouse as to the division of property, spousal support, child custody or child support consult with an experience Round Rock divorce attorney. If you have any questions regarding agreements prior to or during a divorce call Clifford Alan Swayze at 512-335-5245 located at 1000 Heritage Center Circle, Round Rock, Texas 78664.