Divorce in Texas: Contested and Uncontested Divorces
Divorce can range from a long, drawn-out process to an amicable resolution for marital problems that cannot be solved. Every divorce falls into one of two categories: contested or uncontested. A contested divorce occurs when the parties cannot agree to the same terms regarding property division, assets, child custody, child support, and debt allocation, among other things. An uncontested divorce refers to when a couple agrees on all of the issues needed to end their marriage, including property and asset division.
Frequently Asked Questions about Contested and Uncontested Divorces
Here are some answers to frequently asked questions about contested and uncontested divorce.
How do you know if you can get an uncontested divorce?
In Texas, both partners need to not only agree to the divorce, but to other terms, including property division, child custody and visitation, debt division, and other matters. Your divorce is likely contested if either spouse is alleging a ground other than insupportability (a no-fault ground for divorce).
Is there a minimum waiting period to get a divorce?
Yes. In Texas, most cases have a minimum of 60 days for a divorce to be finalized, but many cases take longer. After this period is up, you and your spouse appear before a family court and a judge finalizes your divorce.
What are some benefits to getting an uncontested divorce?
Uncontested divorces are generally resolved outside of court, which helps keep fees down. Plus, staying out of court means you can dissolve the marriage more quickly and privately. Another advantage to an uncontested divorce is that you may not need to hire an attorney, which can also keep costs down.
In an uncontested divorce, will a court have to intervene when children are involved?
For couples with children going through an uncontested divorce, it is not uncommon for the couple to go to court to settle child custody issues, as well as child support payments. One thing to keep in mind is that the court acts in the best interests of the child when deciding these matters. Unless a couple is able to solve all issues and come to an agreement, what starts out uncontested divorce often becomes contested because, particularly when children are involved. It can become difficult to settle everything fairly out of court.
Should you get an attorney when you have an uncontested divorce?
Maybe. There are many reasons to hire an attorney, even in cases of uncontested divorce. If your spouse has an attorney, you should hire one to make sure your interests are fairly represented. If you have kids, hiring an attorney can help you work out a better child custody agreement. Other issues, such as property division and redrafting a will may be at issue, so retaining an attorney can help you make sure your interests are not undermined. Keep in mind that the agreement you come to at the end of your divorce regarding property division is final 30 days after the judge presiding over your case signs your divorce decree. If you find a mistake in the property division agreement or find another issue, you have to file a motion for a new trial or a modification of the divorce decree. However, you have to file this motion within 30 days of judge’s signing of your divorce decree or changes will not be allowed. Hiring an attorney can not only streamline the process for you and give you peace of mind but can help you get the agreement that is best for you.
Are there steps to an uncontested divorce?
Yes. First, you file an original petition for divorce with the District Clerk’s Office.
You must then give your spouse notice of the divorce. You can give notice in several ways, including serving them with divorce papers, providing a waiver of citation, or in some cases, by publication.
When notice is served, your spouse must respond. Your spouse can file an answer or file their own court documents. Your spouse can also request a court hearing.
After this, you have to wait 60 days, during which you can negotiate, mediate, and/or request temporary orders.
After the 60 days are up, you can schedule a final hearing for divorce which is presided over by a judge.
Once the divorce decree is finalized, you must provide the order (or have the court do so) to your spouse.
Is there a process when it comes to a contested divorce?
There are steps almost everyone takes when it comes to a contested divorce. First, one spouse will file a petition which states the grounds you are alleging for divorce. In Texas, grounds for divorce include: insupportability, cruelty, adultery, felony conviction of your spouse, abandonment, living apart (three years or more), or confinement of a spouse to a mental hospital.
The other spouse then needs to respond to the divorce petition. If at this stage in the process if you have not hired an attorney, and especially if you are going through a contested divorce, you should hire an attorney.
Then, the attorney will review your case and go through the process of gathering information about the divorce, also called “discovery,” which includes collecting evidence and depositions.
Next, you will go through pretrial motions (a phase of the process before trial) and court hearings.
Following the pretrial motion stage, any settlement proposals or other negotiation can be done.
If no agreement can be reached, you proceed to trial. Generally, if the resolution of the case is not in your favor, you can appeal the court’s decision.
What should you remember?
Divorce gets complicated. What starts as an uncontested divorce can become a contested divorce, particularly when children or property division are involved. If your spouse retains an attorney or your divorce is contested, you should consider hiring an attorney so your interests are represented as fairly as possible.
Considering a Divorce? Contact Us
Do you have questions about contested and uncontested divorce? If so, call us at (817) 900-3220.
To learn more about divorces in Texas, visit our Divorce page.