Frequently Asked Questions About Uncontested and No-Fault Divorce

The following are answers to some of the most frequently asked questions about Uncontested and No-Fault Divorce in Texas. The answers are general and designed to help you better understand how Texas handles Uncontested and No-Fault Divorce.

The law in the individual circumstances of your case may vary and may affect the results in your case.

Subsequent blogs will cover frequently asked questions regarding divorce, child custody, child support, property division, and alimony.

Do I have to get my spouse's consent before I start the divorce proceedings?

A divorce in Texas does not require obtaining your spouse's consent before filing.

However, if the goal is to have an uncontested or agreed divorce, your spouse will need to sign all the relevant documentation once he/she has been served.

Can I get my spouse to pay for the attorney in an uncontested divorce?

Yes, if that is what the two of you have agreed. You can swap out the word uncontested with agreed.

If you or your spouse are not in agreement on something, then you and your spouse do not have an uncontested divorce.

Can I get divorced in Texas if I was married in another state?

Yes. You can obtain a divorce in Texas as long as one party meets the residency requirements.

Under Texas Family Code Section 6.301 for a divorce action to be commenced in Texas Divorce Court, one of the spouses must have been:

  1. Domiciled in Texas for six months or more and
  2. A resident of the county in which the suit is filed for the preceding 90-day period.

Can I still get divorced in Texas if either my spouse or I no longer live in Texas?

A Texas divorce does not require both parties to meet the residency requirements. If one party is still a resident of the State of Texas, you can obtain a divorce here.

Also, Texas does require you to maintain those residency requirements throughout the entire divorce process. That means if you met the requirements when you started the divorce, you can later move to another state and still be able to finalize the divorce in Texas.

What is an uncontested divorce?

An uncontested divorce means that both parties have reached an agreement on the following:

  1. Agreeing to be divorced
  2. Parental decision-making responsibility for things such as medical decisions, educational decisions, the psychological decision for the children, etc.
  3. Parental visitation
  4. The amount and duration of child support
  5. The amount and duration of any spousal support (alimony)
  6. The division of property and debts.

For more information on an uncontested divorce, check out my blog article, “Uncontested Divorce Attorney in Spring, Texas.”

Can I force my spouse to agree to an uncontested divorce?

No. In an uncontested divorce, either you or your spouse agree on all issues or you do not.

If my spouse and I agree on most but not all issues are our divorce uncontested?

No, agreeing on many of the issues in a divorce is helpful. However, not agreeing on all issues means there are still contested issues which may require court hearings to resolve.

Can my spouse and I use the same attorney for our uncontested divorce?

No.

Whether your divorce is contested or uncontested, an attorney can only represent one party.

However, if you agree on all issues, the attorney for the party who is represented can prepare papers for the client based on that agreement.

The other party does not have to get a separate attorney.

What if my spouse does not want the divorce?

If your spouse does not want the divorce, you are still able to pursue the divorce on your own. Your divorce will no longer be uncontested. However, if you want a divorce, it can be completed without your spouse’s consent.

A default judgment can be pursued if your spouse decides to completely ignore the petition for divorce.

Typically, when one spouse does not want the divorce, they will draw out the process as long as possible and create issues. However, the case can be set for hearings and/or final trial to push the case along.

Must fault be found against a party for a divorce to be granted?

No. In Texas, a divorce may be granted without either party being at fault.

However, a Texas divorce does allow for divorce to be granted when one party is found to be at fault in the break-up of the marriage.

What are the grounds for divorce in Texas?

As a general rule for a Texas divorce, a person does not need a particular reason to divorce their spouse. However, to obtain a divorce, the requesting spouse must plead and prove there is at least one ground for granting the divorce.

There are seven valid grounds to specify in a divorce petition. Six are fault grounds and one (insupportability) no-fault ground. Those grounds include:

  1. Living apart
  2. Confinement in a mental hospital
  3. Cruelty
  4. Abandonment
  5. Conviction of a felony
  6. Adultery
  7. Insupportability

Why would someone want to plead for fault in a divorce?

If successful in proving a fault ground for divorce, the party may be allotted a better division of the community estate.

For our purposes, a disproportionate share means that you may be awarded more than 50% in most cases of the marital property.

Spousal Support

If a spouse is eligible to receive spousal support under Texas Law and a Judge is inclined to award spousal support, then a judge may consider marital fault when awarding the amount and duration of spousal support in the divorce.

Even if a fault ground is pleaded, a judge has the discretion of granting the divorce on the ground of insupportability instead.

Is Texas a no-fault divorce state?

Nowadays, the most common reason for divorce in Texas is called “insupportability.” Insupportability is the Texas version of pleading no-fault in a divorce.

The actual language that is used in an Original Petition for Divorce is that “the marriage has become insupportable because of discord and conflict, which destroys the legitimate end of the marriage relationship and there is no reasonable expectation of reconciliation.”

All that means is there has been a fundamental breakdown in the marriage relationship due to nothing more than a conflict of attitudes of at least one spouse.

The parties do not expect to ever be able to get along well enough to continue the marriage, so divorce is being asked for.

Can my spouse ask for a divorce also?

Yes.

If you are the spouse who filed first, you are known as the Petitioner. Your spouse will then be known as the Respondent. They may file his or her request for a divorce in a document, usually called a counter-petition for divorce.

This very common in divorce.

What happens if I reconcile with my spouse?

You may dismiss your divorce proceedings by filing a request for nonsuit.

Generally, we suggest making sure the reconciliation is going to take before doing so. This is done by asking your attorney to put the case on hold for a few months.

If my spouse and I agree on everything, will we have to go to court?

The answer is that in most circumstances, someone will have to go to court regardless of whether everything is agreed to and signed off by both spouses.

This means that either you or your spouse will have to appear in court to answer a few questions and let the court know the case has settled.

The Texas Family Code requires at least one of the spouses to appear before the court and give some very basic testimony. This court appearance is commonly known as a “prove up hearing.”

The testimony is general in nature and informs the court of the final terms of the divorce and requests the court grant the divorce by the agreement.

Possible alternatives to an actual appearance in court for a prove-up hearing

Depending on the court and with permission from the court, someone can appear:

  1. Via the phone or
  2. Give testimony through a written deposition

What sort of questions am I asked at the prove-up hearing?

For the most part, prove up questions are simple yes or no questions. Sample “prove up” questions are as follows:

  1. Would you state your name, please?
  1. Are you presently married to JANE SMITH?
  1. Have you been a domiciliary of Texas for the preceding six-month period and a resident of this county for the preceding ninety-day period?
  1. Were you married to JANE SMITH on ___________, and did you cease to live together as spouses on or about _________?
  1. Has your marriage to JANE SMITH become insupportable because of a discord or conflict of personalities that destroys the legitimate ends of the marriage relationship?
  1. Is there any reasonable expectation of reconciliation?
  1. Were there two children born during this marriage?
  1. Were any children adopted?
  1. Is your wife expecting a child at this time?
  1. Is it true you and your wife reached an agreement in mediation?
  1. Isn’t true that both you and your wife signed that agreement?
  1. I will hand you a document entitled Mediated Settlement Agreement, which bears the signatures of you and your wife. Do you recognize this as the document that contains the agreements entered into between you and your wife?
  1. Do you think that the proposed parenting plan is in the best interest of the children and do you ask the court to approve that proposed parenting plan?
  1. Have you and your wife entered into an agreement concerning the division of your property and debts?
  1. Do you think the agreement is fair and equitable to both you and your wife?
  1. Are you asking the court to grant you a divorce and approve all the agreements you have entered into?

Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?

Yes. Unlike other states, issues surrounding support, custody, alimony, and property have to be decided before the divorce is final.

A divorce case involving children of the marriage is two separate lawsuits. (In re Marriage of Morales, 968 S.W.2d 508, 511 [Tex.App.-Corpus Christi 1998, no pet]).

Thus, if the parties to a divorce proceeding are the parents of a child, any suit for dissolution of their marriage must include a suit affecting parent-child relationship. (Tex. Family Code Ann. § 6.406(b) [Vernon 1998]).

This joinder is mandatory. Failure to follow joinder mandated by statute renders a judgment void.

How is property divided in Texas for an uncontested divorce?

In an uncontested divorce, property is divided however you and your spouse would like to divide property.

The court, for the most part, does not care as long as the two of you agree.

What I generally see when people agree to split property is 50/50 to 60/40 split. If someone is asking for something more than that, it generally means the parties are going to go to court for a trial.

Why do the attorneys keep talking about property? Our divorce is uncontested.

In Texas, property means more than land. It means anything you can own such as:

  1. Cash
  2. Bank Accounts
  3. Retirement Accounts
  4. Animals
  5. Cars etc.

The Texas Community Property Rule means that everything either you or your spouse owns is owned by both of you together.

In a Texas, divorce property must be divided. An uncontested divorce means that you and your spouse have decided how you want to divide up the property.

However, you still have to get the judge to approve how you are dividing it up. For the judge to approve the property division, you still have to tell the judge what the property division is by putting it in your final divorce decree.

If you do put it in your final divorce decree, you have not divided up the property and still own it with your spouse. This can be problematic and expensive to fix after a divorce.

Can we get divorced when we have a bankruptcy pending?

As previously discussed elsewhere in this article, a Texas divorce must take care of 1) the divorce 2) property debts and 3) children’s issues all at the same time.

This means that if there is a bankruptcy pending, this can complicate the divorce.

One of the most powerful benefits of filing for bankruptcy is the automatic stay. The automatic stay is like pressing a button that stops creditors dead in their tracks.

When filing bankruptcy in the middle of a Texas divorce, a bankruptcy filing can delay the finalization of a divorce.

Texas State Court Judges are not supposed to make a final ruling in a divorce case while your bankruptcy case is pending in Federal Court.

If you have a bankruptcy pending during a divorce, then a Motion to Lift Stay is the usual course of action to get the divorce finalized. However, this may complicate your bankruptcy, so you should talk with your bankruptcy attorney regarding the consequences.

In my experience, it makes more sense in most circumstances to wait until you complete your divorce before filing for bankruptcy.

Can we get divorced if we are still living together?

Yes, as discussed in the previous chapter, Texas does not have a mandatory separation requirement before filing for divorce.

It has become more common with the current state of the housing market and economy for spouses to continue living together while their divorce is pending.

This is one of the things that I discuss with many of my clients. If they can stand to live with their spouse in a lot of circumstances, it makes a lot of financial sense for this to continue.

Should I move out before I consult an attorney or file my suit for Divorce or SAPCR?

As mentioned above, staying together in a lot of circumstances makes sense.

However, you should leave if staying in your home puts you or your children at risk by your spouse because or physical or mental abuse or drug use.

It is our advice to consult your attorney before relocating.

Can we get a divorce if we are still having sex?

Yes. Being intimate with your spouse will not have any legal effect on your ability to get a divorce in Texas.

Unborn Child

If, however, a child is conceived between you and your spouse, provisions regarding the child such as conservatorship, possession, and child support will have to be included in your decree.

This means a pregnancy will delay the divorce until the child is born.

Other Complications

Having, sex with your spouse during a divorce, in general, does not create a legal problem. However, there may be emotional problems created by having sex with your spouse.

On more than one occasion, we have had to tell our clients to cut it out because it was creating confusion with their spouse thinking they were getting back together but that was not the case.

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Other Articles you may be interested in:

  1. Frequently Asked Questions About Legal Separation
  2. Frequently Asked Questions Regarding Void Marriage in Texas
  3. Frequently Asked Questions Regarding Texas Annulment
  4. 10 Facts You Never Knew About Texas Annulment
  5. How an annulment is different than a divorce in Texas
  6. Frequently Asked Questions Regarding Common Law Marriage and Divorce
  7. Frequently Asked Questions Regarding Texas Marriage
  8. Frequently Asked Questions in Texas Divorce Cases
  9. 15 Myths About Divorce in Texas
  10. 9 Questions to Ask Yourself and the Divorce Lawyer Before You Hire Them
  11. Common Questions about Texas Prenuptial and Marital Agreements
  12. Can I sue my spouse's mistress in Texas?

Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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