The Texas Two-Step: MSAs in Property Cases?

I call it “the Texas Two-Step.”

You go to mediation, reach an agreement to settle a divorce, and set it in concrete with a Mediated Settlement Agreement (MSA).

That’s step one.

Then, the lawyers prepare a divorce decree with the exact same terms as the MSA.

That’s step two.

Anyone see any inefficiencies so far?

Doing the Texas Two-Step is justifiable in divorces with kids involved.

Boilerplate for typical kid issues (conservatorship, rights, possession, child support, health care) has mushroomed through the years; to the uninitiated (e.g. a typical client), it can be daunting.

It’s hard to get someone to sign a 40 page document after a long day of mediation.

So, MSAs in divorces with kids summarize, abbreviate, and paraphrase the kids sections, trusting that reasonable lawyers can expand those terms without undue conflict.

In divorces without kids, however, the Texas Two-Step is rarely justified.

A typical MSA in a property case is 5 pages of boilerplate and 4-5 pages of schedules, stating who gets what.

A typical Divorce Decree in a property case is 5 pages of boilerplate and 4-5 pages of schedules, stating who gets what.

In most property cases, there is simply no need for an MSA.

But, an MSA has an advantage over a decree – if you are the party who wants most to close: once signed, with certain obvious exceptions (e.g. fraud, against public policy), the parties cannot back out, not so with approving a decree.

Easy fix: insert a provision in the decree that states that it is enforceable as an MSA under TFC 6.602, and add the magic language (not subject to revocation in all caps, bold, or underlined).

Voila!

All done in one step.

That’s not to say that there are not times when an MSA may be the better tool in the box for the job, but the exception is limited to special cases.

So, please help me eliminate unnecessary legal work!