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Roger, Attorney
Category: Legal
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I have filed to have jurisdiction over custody in tx where

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I have filed to have jurisdiction over custody in tx where daughter and I have lived almost 2 years. Separation agreement was signed in nc almost 2 yrs ago, never submitted to court. Ex is trying to make that agreement a rule 11 now because it is very vague as to visitation (nothing specified) and I am trying to get more standard limits. Can he do that, to try to claim I am in breach because he showed up expecting to get her over Mother's Day weekend and I refused? Will my already filed case supersede what he's trying to do? As we will b going to court for my case, isn't he sueing me for breach redundant?
Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for your question.

A Rule 11 Agreement is an agreement can be made enforceable and binding in one of two ways:

(1) if it is in writing, the agreement must be signed by the attorneys or parties making the agreement and it must be filed with the papers of the Court; or

(2) if it is not in writing, the agreement must be made (stated) in open court (while court is in session) and made part of the official record of the case.

Thus, if your agreement was NEVER filed or told to the court, then it is not enforceable and your attorney should be able to resolve that.

Also, your filing should take precedence since it was filed first, and if there is no order in place under Rule 11, then you shouldn't be held to it.
Customer: replied 3 years ago.
The agreement was signed in nc at the time of the separation, almost 2 years ago, and never incorporated into the divorce decree. He says he has filed to have it Rule 11 here in tx , to get it signed by a judge, so it is a court order and he will sue me for being in breach. Can he file an old agreement from another state without me agreeing to that?
You wouldn't be in legal breach of the agreement UNTIL the document was accepted by the court and filed. So, even if he did get it incorporated, nothing you have done before would be a breach BECAUSE the document isn't legally binding at this point.

I can't say whether the court would accept the old document or not -- there's no law that would prohibit it, but it would be more likely for the Texas judge to order that a new agreement be executed and filed due to the time.
Customer: replied 3 years ago.
When I filed, there was a waiting period of 30 days. Would what he' s trying to do have a waiting period as well, or be something he can do in a few days?
The same time periods should apply, but it is also possible that he requested an expedited hearing.

However, your attorney should be able to claim that the agreement isn't enforceable to prevent any claim of breach before/until the agreement is accepted by the court.
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