In divorce mediation, a trained, neutral professional helps couples communicate and negotiate how they'll handle the important issues in ending their marriage. The goal is to avoid the time and expense of the traditional court process by reaching a marital settlement agreement.
There are pros and cons to divorce mediation, depending on your situation. For most couples, however, the advantages win out.
Mediation is an option at any point in the divorce process.
An "agreed divorce" is the type of uncontested divorce in Texas available for couples with property to divide, minor children, or both. In order to file for this kind of divorce, you and your spouse must have already agreed about all of the issues in your case, including:
If you're having trouble reaching an agreement on one or more of those issues, you can turn to mediation to help you work out the disputes.
In fact, many experts advise that earlier is better when it comes to divorce mediation. If it results in a settlement, mediation allows you to take advantage of the simplified agreed-divorce process. It also means that you can complete your divorce without hiring a lawyer (though you can hire one if you want). And it can help minimize the conflicts that often arise during a traditional, contested divorce proceedings, which can hurt both you and your children.
Even if you haven't managed to agree on all the issues before you file for divorce, you can still use mediation while your case is proceeding, whether or not you've hired a lawyer. For example, you or your spouse might be more open to mediation after more information has come out through "discovery" (the legal process that allows spouses to require each other to share certain information and documents). Also, the judge may order you to mediation before you can have a final divorce hearing (more on that below).
Under Texas law, a judge may order (or "refer") divorces or child custody cases to mediation (Tex. Fam. Code §§ 6.602(a), 153.0071(c) (2021)).
Aside from this general rule, the policies and practices for court-ordered mediation vary from county to county in Texas. In some counties, judges will usually—or even always—order the spouses to go to mediation before the case goes to a temporary or final hearing. The judge may also appoint a particular mediator (typically if the spouses couldn't agree on choosing their own).
Some counties in Texas have Dispute Resolution Centers that prove free or low-cost mediation. Typically, however, you need to meet financial requirements to apply. For instance, you wouldn't qualify for services with the Dispute Resolution Center in Harris County if you and your spouse own significant assets or earn more than $80,000 a year (combined).
If you don't qualify for free or low-cost divorce mediation—or it's not available in your county—the amount you'll pay for private mediation will depend on various things, including the complexity of the issues you need to work out and the mediator's hourly or per-session rate. (Learn more about the factors affecting the cost of divorce mediation.) Total bills typically range from $3,000 to $8,000. If that sounds like a lot, it may help to know that overall divorce costs are generally much higher when couples go to trial to resolve their disputes.
Texas doesn't have any specific laws or rules on how divorce mediation takes place (except for its requirements for mediated agreements, discussed below). But most divorce mediations follow the same basic stages, including:
At the end of the process, the mediator may help prepare a written agreement that reflects what you and your spouse have decided during the negotiations. Under Texas law, the mediated settlement agreement will be legally binding as soon as you and your spouse have signed it (along with your lawyers, if you have attorneys), but only if the agreement includes a prominent statement (boldfaced, capitalized, or underlined) that it is "not subject to revocation."
That statement means that you and your spouse may not change your minds and must follow the provisions in the mediated agreement, even before you get a final divorce decree. This is true whether you signed the agreement during voluntary mediation (before or after filing for divorce) or court-ordered mediation.
Even when a judge has ordered you to participate in mediation, you aren't required to reach an agreement, and the mediator may never force you to settle your disputes. If mediation is completely unsuccessful—or if you and your spouse agree on some issues but not others—your case will end up in a trial unless you later settle the unresolved issues.
Divorce mediation is generally inappropriate when there's ongoing domestic violence, emotional abuse, or bullying in a marriage. Under Texas law, when you've been a victim of family violence and a judge has referred your divorce case to mediation, you may file an objection to the referral any time before the final mediation order is entered. Once you formally object, you won't be ordered to mediation unless your spouse asks for a hearing on the issue.
Even if the judge decides after that hearing to order mediation, the order must include measures to protect your physical and emotional safety. Among other things, you won't be required to have face-to-face contact or be in the same room with your spouse during the mediation sessions. (Tex. Fam. Code § 6.602(d) (2021).)
If you're considering voluntary divorce mediation despite a history of abuse in your marriage, you might consider having the mediator meet separately with you and your spouse (even if you use online mediation). Separate sessions, or virtual mediation sessions, can also be helpful if the degree of hostility between you and your spouse is so high that you can't be in the same room.
After you've signed a mediated settlement agreement, the final divorce paperwork will have to be prepared and filed, including:
Your lawyer can do this for you, if you have one. Some mediators might also be able to help file the paperwork.
When your mediated settlement agreement meets the requirements discussed above (including the statement that it can't be changed), Texas law says that you are entitled to a final divorce decree that follows the terms of the mediated settlement. That's true whether the mediation took place before you filed for divorce or during the divorce proceedings.
This rule has only two exceptions. The first is if the judge finds that the settlement was illegal or resulted from fraud, duress, or coercion. The second exception is if the agreement isn't in a child's best interests, and either:
Unless one of those circumstances applies, the judge may not refuse to enter a divorce decree based on what a mediated settlement agreement says—even if the judge doesn't believe it's fair or in a child's best interest. (Tex. Fam. Code §§ 6.602, 153.0071(e-1); In re Marriage of Joyner, 196 S.W.3d 883 (Tex. Ct. App. 2006); In re Lee, 411 S.W.3d 445 (Tex. Sup. Ct. 2013).)
It's worth pointing out that these Texas rules on mediated settlement agreements do not apply to agreements that spouses reach outside of mediation, on their own or through their lawyers.
Your divorce will be final after the judge signs the final decree. The judge may not sign the decree until at least 60 days after you filed the initial divorce papers, except in certain cases involving family violence. (Tex. Fam. Code § 6.702 (2021).)
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