Understanding Public Policy Limits Under Texas Law
One of the most common questions people ask during a divorce is deceptively simple:
“Can we just agree to this?”
In Texas, the answer is often yes—but not always. Texas law strongly favors settlement in divorce cases, but courts will not enforce agreements that violate public policy, especially where children are involved.
Understanding what can be negotiated, what is restricted, and what is flatly unenforceable can prevent costly mistakes and ensure your divorce agreement actually holds up in court.
Texas Law Encourages Divorce Agreements—With Limits
Texas courts favor Agreed Final Decrees of Divorcebecause they:
- Reduce litigation
- Save judicial resources
- Allow families to move forward faster
However, judges are not required to approve every agreement, even if both spouses consent. Under Texas law, courts must independently evaluate whether certain provisions—especially those involving children—are in the best interest of the child and consistent with public policy.
What Can Be Negotiated in a Texas Divorce
1. Division of Community Property and Debts
Texas is a community property state, but that does notmean property must be divided 50/50.
Spouses may agree to divide:
- Real estate
- Bank and brokerage accounts
- Retirement accounts
- Businesses and professional practices
- Vehicles and personal property
- Community debts
Texas courts will generally enforce any property division the parties agree to, even if it is unequal, so long as the agreement is voluntary and not unconscionable.
2. Spousal Maintenance (Alimony)
Texas allows parties to negotiate:
- Whether spousal maintenance will be paid
- The amount
- Duration
- Method of payment
Parties may also waive spousal maintenance entirely, even if one spouse might otherwise qualify under the Texas Family Code. Courts routinely enforce these agreements.
3. Parenting Time and Possession Schedules
Texas parents have significant flexibility to craft:
- Custom possession schedules
- Expanded visitation
- Non-standard holiday arrangements
- Transportation provisions
As long as the agreement serves the child’s best interest, Texas courts generally approve negotiated parenting plans.
4. Child Support Above Texas Guidelines
Parents may agree to:
- Pay child support above guideline amounts
- Cover private school tuition
- Pay extracurricular or medical expenses
Texas courts commonly approve upward deviations because they benefit the child.
What Is Negotiable—but Closely Scrutinized
1. Child Support Below Texas Guidelines
Parents cannot simply agree to reduce child support below guideline levels.
Even if both parents consent, the court must find that:
- The deviation is justified, and
- The agreement is in the child’s best interest
Without that finding, the court may reject the provision.
2. Conservatorship Restrictions
Agreements that:
- Severely limit a parent’s rights
- Remove decision-making authority without justification
- Restrict access unrelated to child safety
may be rejected by the court, regardless of consent.
3. Parenting Penalty Clauses
Provisions that financially punish a parent for:
- Remarrying
- Dating
- Lifestyle choices unrelated to the child
are often disfavored and may not be enforceable.
What Is Against Public Policy in a Texas Divorce
1. Trading Child Support for Visitation
Parents cannot bargain away child support in exchange for more or less parenting time.
Child support belongs to the child, not the parents, and cannot be negotiated away.
2. Permanently Waiving a Child’s Right to Support
Even if both parents agree, a child’s right to support cannot be permanently waived under Texas law.
3. Pre-Determining Future Custody Outcomes
Agreements that attempt to:
- Automatically modify custody in the future
- Pre-judge future best-interest determinations
are generally unenforceable.
4. Agreements Encouraging Divorce or Punishing Reconciliation
Clauses that reward divorce or penalize reconciliation may violate Texas public policy and be struck by the court.
5. Illegal or Unconstitutional Provisions
Any provision requiring illegal conduct or improperly restricting constitutional rights will not be enforced.
Why Texas Courts Draw These Lines
Texas courts balance two important principles:
- Respecting party autonomy
- Protecting children and the integrity of the legal system
This is why Texas encourages negotiated divorces—but insists on judicial oversight where broader public interests are involved.
Final Takeaway
In Texas, divorcing spouses can negotiate a lot—but not everything. Agreements that violate public policy or harm children may unravel later, even if they seemed acceptable at the time.
A carefully structured divorce agreement, drafted with Texas law in mind, can provide certainty, enforceability, and peace of mind.
At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.