What is a Rule 11 Agreement?
A Rule 11 Agreement is a rule contained in the Texas Rules of Civil Procedure that is in place to ensure final orders and stipulations made by the parties in divorce litigation are not denied or altered by the presiding judge after the litigants have agreed to the terms of a divorce. A basic Rule 11 Agreement consists of the parties spelling out, in writing, their decision on the basic terms of a divorce. Once the terms of a Rule 11 are agreed upon both parties and their respective counsel that the Rule 11 Agreement is then signed , filed with the court by one of the litigants’ attorneys, and presented at a hearing to be verified. At the hearing, the litigants will appear together before the judge and testify that the document and its terms known as the Rule 11 Agreement are true and correct. As long as the judge accepts the terms of the agreement and finds the parties have knowingly and voluntarily entered in to it, the agreement is upheld and the parties’ reinstated file is closed and the decree is finalized.
Rules Governing Rule 11 Agreements
Agreements made in the midst of divorce proceedings between the parties are commonly referred to as rule 11 agreements. Rule 11 agreements are governed by Texas Rules of Civil Procedure 11.
Rule 11 requires that all agreements, whether temporary or final, be in writing.
In addition, all rule 11 agreements must be signed by both parties to be enforceable (although the signature of just one party is sufficient where the other party fails or refuses to sign). However, while this rule seems pretty simple, this has been the subject of many disputes in Texas courts over the years. 65 in particular.
Id. at 1094-95 ("[A] Rule 11 agreement that is stated in open court or recited on the record cannot be changed except by another agreement recited on the record or in writing and executed with the assurances and approval of the trial court[.]"); Jelly Mazda, LLC v. James, 477 S.W.3d 435 (Tex.App.—Houston [14th Dist.] 2015, pet. denied)("[R]ule 11 only applies to agreements about pending litigation").
Third, rule 11 agreements must be filed with the court in order to be enforceable (except where the "court is privy to the agreement," although technically, all parties must sign the agreement in order for it to be enforceable). See Espey v. Espey, 660 S.W.2d 614, 615 (Tex.1983) ("Since the agreement was not in writing, signed, and filed with the court, compliance with all prerequisites to Rule 11 was not met."); see also In re Fuqua Investments, Ltd., 419 S.W.3d 919, 930 (Tex. App.—Dallas 2014, no pet.); McMillan v. Jordan, 850 S.W.2d 214, 217 (Tex.App.—Dallas 1993, writ denied).
Failure to comply with the rule 11 requirements will render the agreement unenforceable. 66 67 That does not mean, however, that the agreement is invalid. While an agreement noncompliant with rule 11 may not be enforceable, it does not invalidate the contract, even if the underlying cause of action has been disposed of. McMillan, 850 S.W.2d at 218; see also Deiotte v. Laney, 571 S.W.3d 818, 820 (Tex.App.—Tyler 2019, no pet.) (stating that "compliance with Rule 11 is not a jurisdictional prerequisite to an enforcement action.").
Advantages of Rule 11 Agreements
When it comes to divorce proceedings, especially when they are contentious, Rule 11 agreements can be especially helpful in avoiding conflicts and giving each party peace of mind. Here are but a few of the many benefits that come with Rule 11 agreements: They save time: If two parties can agree in advance to the various aspects of their divorce, such as scheduling, dividing assets and finances, and so forth, this greatly reduces the amount of time needed to finalize the divorce and moves the process along much quicker. They reduce the risk of conflict: A Rule 11 agreement signed by both parties is legally binding. This means that if one party violates the terms at a later date, it could be subject to serious consequences and/or be held in contempt by the court. They provide better outcomes: The divorce process can be especially daunting, which isn’t made any easier when one or both parties feel as though the divorce is out of their hands. A Rule 11 agreement gives each party more control and a greater sense of comfort regarding the final outcome of their divorce. Most importantly, it’s recommended to seek out a legal professional that specializes in family law if you are considering the use of Rule 11 agreements in your impending divorce.
Possible Disadvantages of Rule 11 Agreements
Rule 11 Agreements are all well and good until one of the parties decides to change the game. While Rule 11 Agreements are favored and will be enforced by the court if the party acts within the four corners of the agreement, problems can arise when one party refuses to act in accordance with the Agreement, or acts outside the bounds of the Agreement. Situations where bar orders and injunctions are involved come to mind.
In another scenario, an Agreement may be governed by federal law or bankruptcy law, the impact of which has not been recognized by a party. If a party wishes to expose the other party to personal liability outside the Agreement’s parameters, that party will file a contempt motion. This motion may be premised on ignorance about the Agreement’s import. Of course, if an Agreed Order contains a waiver of future claims or liability, that waiver may be ignored or overlooked, but it is also enforceable through contempt.
An Agreed Order will likely have no bearing altogether, if filed as an attachment to another document in the case, purportedly under Rule 11. If the Rule 11 Agreement was not incorporated in the final decree of divorce by reference or otherwise through a Blanket Consent Order, then the Agreed Order is not enforceable by contempt through the NC courts. That being said, it could still be enforceable by contract, but actually enforcing the contract would require a lawsuit against the other party. This is a costly, time-consuming endeavor, and one that will often be seen through the lens of a party acting as a "divorce lawyer" rather than a "business lawyer," even if the concept is related to the divorce.
Furthermore, if the Agreed Order did not allocate prejudgment interest on a financial award, the prejudgment interest may not accrue, even if that result was contemplated in contemporaneous paperwork. Items of financial data may be fatally lost in translation through the Agreed Order. Three, four, five or more amendments later, it will dawn on the parties that the relief sought post-divorce was not achieved, making an Agreed Order either irrelevant or a dead letter by its own terms.
Another problem may arise if a party moves to pave a new road because the prior road led nowhere. Often, the road will lead somewhere, but it will return to the same fork again and again, and no amount of fertilizer, irrigation or sunshine will make a new road except for the one with the red flag in a 20-foot high winds:
No amount of wiggle room will prevent a self-interested party from trying to wriggle out of an Agreed Order. Sometimes, a party will have a change of heart. The parties’ circumstances may change in a way that a party’s advantage from a bargain is so out of whack that a party will victimhood the other party to exploit economic or emotional incentives to avoid the deal made and agreed upon. The party with a change of heart will make allegations of duress, fraud and related gambits, regardless of how much the party signed off on the original deal. Even more, if a party blatantly ignores the Agreed Order and refuses to conform to its terms, the aggrieved party is left in a difficult position. The aggrieved party can either proceed by way of contempt – a task even more difficult, due to the specificity required in an affidavit – or simply move forward without the terms of the Agreed Order in hopes of less drama so that the aggrieved party can live her life in peace. If this occurs, however, the original terms of the Agreed Order may be deemed abandoned – leaving the aggrieved party without any recourse. Alternatively, the aggrieved party is forced to fight the temptation to move on with her life and may even find herself at the center of a new trial for issues ruled upon by agreement.
What a hot mess, many months or years after the fact!
The key is to ensure that any Agreement entered into is as clear as possible, and without ambiguity, with specific notice as to how it will be incorporated into the final decree of divorce.
Drafting a Rule 11 Agreement
If you determine that you are going to use a Rule 11 Agreement to dispose of alimony issues while you are obtaining a divorce and seek to make it binding, the following is a step by step guide to how you should draft an agreement which you may want to use in your case.
Again, we strongly recommend that you seek out and hire an attorney to draft and review the document to ensure that it is legally binding. This is not to be taken as legal advice and this section should only be seen as an informational guide. You may not have worked out all of the details internally which you think you need to put into the writing. If you see an issue you need to resolve, this is the time to address it.
You want to start with a preamble so that it has clarity. In the preamble, you want to identify who the parties are. For example, "Plaintiff Jessica Jones and Defendant Bobby Brown." The plaintiff side can be labeled rather than specifically naming the party. For example, Plaintiff and Defendant are common designations.
Then you go into the mutual recitals. A rule of thumb for a paragraph is should contain 4 – 5 sentences. It should be short paragraphs, without run on sentences or long explanations. Keep sentences concise, to the point and clear.
We suggest that if you can work out a marital settlement agreement first, you can then take the language from the MSA and condense it into the Rule 11 Agreement .
You need to disclose to the attorneys prior to drafting the Rule 11 Agreement, what the party’s understanding of the law is on the issue of alimony. This should explain what is and is not alimony under New Jersey laws. You as the attorney should be the one to explain this to the client and to find out if they have had any discussions with the other party. Only the attorney should discuss with his or her client so that the attorney-client privilege is maintained.
Make sure that all critical and legally relevant issues are addressed. If it is a long negotiating, there could be an issue where one party agreed to something without understanding that it could affect alimony or that the payment is alimony or that they are waiving something which they could not actually waive, so they want to go back and revisit those issues.
If you are at the end of the process and you come up with a term which could effect alimony, that might be the time to revisit whether or not you want to make it part of the Rule 11 Agreement, or if you want to make it part of the final judgment. So, if you include a releasing clause, even if you didn’t intend to, you may end up releasing that issue forever.
You want to add a release of any claims from the past to the present.
Enforcement of Rule 11 Agreements
If you are reading this, you probably already know what a Rule 11 Agreement is. But let’s say you and your spouse reach a Rule 11 Agreement before a trial or hearing on contested child custody, child support, co-parenting terms, possession and access, or the division of property. You have a signed agreement, but your spouse isn’t complying with the terms. What can I do about it?
If your spouse is not complying with the Rule 11 Agreement, you can file a Motion to Enforce the Settlement Agreement. The Contract of Marriage is still in force, and with it, the terms you agreed upon. But a motion to enforce an agreement does not in and of itself mean the judge will sign the motion. The judge may be inclined to overrule the motion because he wants the litigating parties to reach an agreement rather than issue an order forcing a settlement. In that case, as mentioned before, the Court has the power to even overrule the parties’ agreement. If there is clear and convincing evidence that supports the party’s position and otherwise finds in their favor, the judge will most likely enforce the agreement, or at least a portion of it, by signing the Order in Favor of the Movant.
A court will require strict compliance with the rule 11 agreement, so if one party fails to comply with the agreement it will be up to the trial judge whether to enforce their terms. If you and your spouse have reached a deal and both signed it, that deal should be implemented and carried out unless there is a good reason not to do so.
Case Studies and Examples
Several real-life examples exist of Rule 11 Agreements being used effectively in divorce cases. In one case, a husband and wife signed a Rule 11 Agreement after an initial hearing to divide their community property, including a marital residence. The Agreement set out how the property was to be divided, who would pay the mortgage, and other debts that were to be cleared. It stated that payments were due on a specific date each month. When the first payment came due, the husband failed to make the payment. At that point, the wife had a right to have her lawyer prepare a final decree to divide the property in the manner set out in the parties’ written agreement. The husband, however, didn’t want to do that. His lawyer argued that the wife’s failure to show up for a trial gave the husband the right to receive title to all the property. He further argued that his wife had "waived" her right to receive the property as agreed. The husband’s argument was blatantly contrary to the court orders and clear law. His argument was rejected by the trial judge, but he appealed the case. The court of appeals denied the appeal, and found it frivolous.
In another family law case, a wife was awarded temporary sole managing conservatorship of the children. A few months later, she filed a motion with the court asking to set the temporary orders for trial. Her husband did not respond to the motion. The dispute involved visitation with the kids only. The husband was denied the right to present evidence at the hearing by the trial court because he had not been served with a trial notice. The wife prevailed at the trial and was awarded a permanent temporary injunction to restrain her husband from interfering with her possession of the children. The husband initially appealed the divorce on the basis that he hadn’t been given the opportunity to present evidence regarding the children. The appellate court found that the husband had, in fact, been given notice of the trial. They also found that having visitation limited was merely temporary pending the trial on the merits. The appellate court rejected the husband’s appeal.
The next example is a case in which the trial court refused to enforce a Rule 11 Agreement until the suit was finally concluded. The parties had previously reached a Rule 11 Agreement regarding temporary orders, but they continued to negotiate throughout the case. After the trial was over, neither party appealed the case. No Statement of Points was ever filed.
In the case of Hodge v. Hodge, 102 S.W.3d 706 (Tex. App.-Houston [1st Dist.] 2003, pet. denied), the court found that there was no indication in the record that a permanent injunction was not part of the Rule 11 Agreement. Because no written objection to the Rule 11 Agreement was presented to the trial court, a permanent injunction may be part of the final decree of divorce. The appellate court concluded that a trial court which fails to sign an otherwise valid Rule 11 cannot be an abuse of discretion.
Even though Rule 11 Agreements during a divorce may have statutory authority when signed by both parties and their attorneys, the keys to enforceability and legality throughout the case are: 1) having a clear and specific agreement; and 2) having the parties’ attorneys file a pleading with the court setting out the terms of the agreement and filing it with the court clerk. Every case will have different facts, so following the law specific to your case helps protect you.
Common Questions About Rule 11 Agreements
1) Is a Rule 11 Agreement enforceable?
Yes, even without the necessity of a judge’s signature as will be the case in a stipulated final judgment, and the hearing in open court, a Rule 11 Agreement is binding upon the parties as it is essentially a contract which must be honored according to its terms as expressed. However, if a party cannot or will not abide by the terms of the agreement, then the other party has options in order to enforce or compel compliance with it.
2) How does one go about enforcing a Rule 11 Agreement?
The party seeking to enforce the Rule 11 Agreement can advise the court that the other party "broke" it and then serve notice to the offending party’s counsel to appear in trial court for a hearing to either enforce the agreement per the terms of the agreement, or set forth what the aggrieved party is seeking.
3) Are Rule 11 Agreements regularly utilized in divorce proceedings?
No. They can be and should be , but lawyers are beginning to question whether the time and expense involved in drafting and executing Rule 11 Agreements is worth the expenditure as many of them are simply filed with the court with little or no mention of the Rule 11 Agreement in reference to the issues agreed to.
4) How will a Rule 11 Agreement affect child support payments?
As noted above, the Rule 11 Agreements can be used to settle all the outstanding issues if the parties negotiate a specific child support agreement and allocate it in the Newly Revised Child Support Guidelines that were issued on September 1, 2009 with the three (3) pages containing the allocations for each of the listed percentages, the parties should be able to reduce their guideline child support obligation to that scheduled amount, or at least can have the court review the same and set forth why the court should deviate from the guidelines in a reasonable range.
5) Will Rule 11 Agreements protect a party from the frequent use of motion practice by his or her spouse?
If both parties abide by the agreement, then they should not have to amend and/or change the agreement in order to accommodate the frequent change of circumstances or serious claims of contempt alleged.