Can a Rule 11 Be Modified? Options and Considerations

Rule 11 Agreements Explained

A Rule 11 Agreement is essentially a settlement agreement that has been designed to be more difficult to change than a standard settlement agreement. A Rule 11 Agreement is not a document you are typically going to use outside of a litigation context, but it has its place in a family law setting. You typically won’t use a Rule 11 Agreement in your estate plan, for instance. On the other hand, you will see Rule 11 Agreements sometimes used in the context of doing a mediated settlement agreement to ensure that the parties do not change their mind later. The Texas Family Code governs these sort of agreements pursuant to Section 6.602 which establishes the requirements. Many of the provisions that you see in a standard contract are also in Rule 11 Agreements. It is worth noting that a Rule 11 Agreement does not have to be labeled as such, nor is it necessary even for a lawyer to be involved. In other words, you will see Rule 11 Agreements in the wild in all sorts of contexts, and not just in family law and not only in contexts governed by Section 6 . 602 of the Texas Family Code. Parties can use a Rule 11 Agreement wherever they want, provided that they follow the requirements of Section 6.602 and also provide the Court with a summary of the terms in the record (whether in a final judgement or hearing minutes). Generally speaking (with some exceptions), Rule 11 Agreements are going to be hard to modify as compared to standard settlement agreements. Calling it a Rule 11 Agreement doesn’t make it one, and neither does your signing it. Trying to have a Rule 11 Agreement in the absence of a lawsuit is a little dubious though. For one thing, Rule 11 Agreements are not appropriate for parties who have executed a pre-marital or marital property agreement. For another, these agreements are binding and enforceable only if during the existence of the litigation. In other words, you can’t avoid some family law statutory procedure or guideline. You have to follow procedure when doing a Rule 11 Agreement as you would with anything else.

When Changes Are Possible

A Rule 11 Agreement is not cast in stone and can be modified or vacated in certain circumstances. Celanese Corp. v. Martin K. Eby Constr. Co., 620 S.W.2d 636, 640 (Tex. 1981). A Rule 11 Agreement may be subject to modification if the parties mutually agree to do so, but the Court may also modify a Rule 11 Agreement in response to a challenge that the agreement is unenforceable.
What happens if the parties to a Rule 11 Agreement improperly believed that the Court had the authority to change an agreed upon deadline? If the parties to a Rule 11 Agreement and the Court erroneously believed that the Court had the authority to change an agreed upon deadline, it is possible for that understanding to form the basis of a modification by the Court, if the proper procedure is utilized. Proposed intervenors in Phillips Petroleum Co. v. Jones argued that the trial court had modified its own judgment improperly in a manner that granted them the right to stage an additional drill of the gas well in question. 681 S.W.2d 149, 152 (Tex. App. – Houston [1st Dist.] 1984, no writ). Thus, if there is an erroneous belief that the original deadline must be treated as a modifiable court ordered deadline instead of an unalterable contractual obligation, a modification by the Court may be possible.
A change in circumstance that is unrelated to the underlying dispute may also justify modification by the court. In Commerce Savings Ass’n v. Bank of the Southwest, the Court held that a Rule 11 Agreement was valid, but failed to include a reservation of jurisdiction clause, thus rendering the agreement unenforceable. 531 S.W.2d 104, 107 (Tex. Civ. App. – Houston [1st Dist.] 1975, writ ref’d n.r.e.). However, the Court subsequently considered the passing of the "Foreclosure Moratorium Act" as an intervening change in circumstances and held that, because the act now permitted acceleration of the due date of the note, the result of the previous Rule 11 Agreement would be modified as well. Id. at 107.

Legal Process for Modification

Filing a Motion with the Court
If the parties can’t reach an agreement, a Judge in the case can hear a motion where the parties seek to have the Court approve their new agreement.
Reference the Texas Family Code. In Texas family cases (dockets are managed according to the local rules of each county and court), you would file a motion and then ask the court to approve it. From a practical perspective, it’s best to file motions in cases that have ongoing court jurisdiction over a person and not a family law suit for divorce because there are stricter timelines and limits on the filing of motions. For example, if a party files a motion, the other side has 7 days to respond in family law cases for divorce. If the case is back in front of the court because of continuing court jurisdiction over the parties, the other side has 21 days to respond to the motion. In either case, it is advisable to have an attorney who is familiar with the court rules, or at least review the local court rules or check with a third party vendor who can look up those rules. There are strict time lines to file a motion for a new order and then file a motion for a new order to have it enforced (for example, a motion for contempt or other enforcement action).
Depending on what type of order you are seeking to modify, your attorney will need to file a motion with the court to ask the judge to approve and sign an Order or Judgment that sets out the new agreed terms from the Rule 11 Agreement.
Judges are not going to send an attorney into a room with the lame duck spouse to negotiate what the agreement should be. However, a private mediator can sometimes spend time with the "lame duck" spouse and talk about getting the matter settled. Rarely will a spouse hire a new divorce attorney. There has to be a motive for that to happen.

Difficulties in Modifying Agreements

Even after the jarring circumstances of a divorce, enforcing a Rule 11 Agreement may prove challenging. Parties may face numerous potential challenges and legal hurdles if they seek to change an Agreement. For one, unless all parties agree, you must establish a material and substantial change in circumstances. This can prove to be extremely difficult for many parties to meet. A court cannot grant a change in circumstances if you are going to be in the same situation you were in before the Agreement was created. Additionally, it can be difficult to establish who has the burden of proof. Fatigue can also be a challenge: with the pressing lifestyle you may have, you may not want to hassle with the courts when it comes to amending your Agreement. Courts may still look closely at any changes , so presenting a compelling reason for any amendments can be helpful. It pays to try to convince a court of the reasonableness of the change. Courts often favor amicable solutions. If two parties do want a change, getting a Rule 11 Agreement approved can be as simple as filing a Modifying Order, however, some may not be as easy. For example, there may be an issue involving a parent dying, having a custodial parent remarry to someone who is legally married. The good news is that these types of issues can usually be resolved through the right appellate measures. However, what the lawyers in the Reversing Lawyer Blog know is that shared custody issues or trial custody issues can be the most lengthy processes. Particularly, when a shared custody issue does not involve a 50/50 split on time, the challenges become bigger.

Success Stories and Failures

State v. State Farm Lloyds, 260 F. Supp. 3d 801 (N.D. Texas 2017). This was a successful change of a signed Rule 11 Agreement. The parties agreed to reduce the per diem for special damages from $200/day to $140/day for each day trial was delayed past the 2-year anniversary of the filing of the claim. The court noted that parties do not need to demonstrate extreme circumstances to modify the express terms of a Rule 11 Agreement.
Harris v. Wells Fargo, 300 F. Supp. 3d 1084 (E.D. Cal. 2017). The attempted modification of a Rule 11 Agreement in this case was unsuccessful, but only because the plaintiff took action after the statutory deadline expired. The court noted that nothing in the Regulations requires a party seeking to change a signed agreement under § 409.904 to demonstrate extreme circumstances to justify the modification, but that the Regulations do not speak to the right of a party to petition a court to modify a signed settlement agreement.
Smith v. Carmouche, 13-cv-00188-BAJ-RLB (M.D. La. 2015). The court rejected a request to modify a Rule 11 Agreement where the request was based on the negligence of an attorney, not on any defect or invalidity in the original agreement.

Role of an Attorney

It is critical to seek professional legal counsel when attempting to modify a Rule 11 Agreement with personal terms. They will guide you through the process, ensuring all legal standards and requirements are met. You will also be protected from personnel pitfalls if you have an experienced lawyer at your side. Regardless of personal terms within the underlying agreement , getting an attorney to look at the proposed Rule 11 Agreement would be a good thing to do. One reason many cases settle is that they cannot pass a Rule 11 test in court. Because of this, it makes sense to make sure the proposed Rule 11 Agreement will pass that test. An experienced family law attorney will tell when other attorneys have not done their due diligence and will offer you ways to protect yourself from being stuck with a bad deal.