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Understanding the different types of divorce

We can think of a divorce in Texas as a destination. However, there are different roads that we can travel down to reach that destination. The different roads have different names, elements, and factors to account for. While everyone on the various roads to divorce can get divorced ultimately the process can look somewhat different based on your circumstances.

Imagine if you were in Seattle, I was in Phoenix and my wife was in New York City. All of us had the plan to meet in Houston next Friday for a lunch together. The only trick was each of us had to figure out how to get to Houston from our various locations by car. The roads, highways, and interstates in each of our locations are different. True- we would all be in cars but the rest of our journeys could be quite different. Hopefully, we all ended up in Houston safely to be able to have our lunch together. 

The same can be said of a divorce. While the different roads that you may choose to take on the divorce path may be different, ultimately they will converge at the destination if you follow a roadmap. You just need a good navigation system and possibly a helpful guide to make sure that you can arrive at your destination on time. These metaphors for divorce aside, the attorneys with the Law Office of Bryan Fagan would like to help you understand better the different types of divorce in Texas. 

It is not as if there are divorces for old people, divorces for young people, divorces for angry people, divorces for happy people, etc. There is one divorce covered in the Texas Family Code that any married person must submit to. However, there are different paths your divorce may take you depending upon your circumstances and the other elements going on in your life at that time. This is what we will cover in this blog post. We are going to examine the different types of divorce paths, describe the circumstances that lead to people going through those types of cases, and then talk to you about how to manage your case based on them. 

If you have any questions about what you read in today’s blog post please contact the Law Office of Bryan Fagan. Our experienced family law attorneys offer free-of-charge consultations six days a week where we can sit down with you and discuss your divorce case and what you need to start thinking about if you are planning on getting a divorce. From there, you can learn more about our office and we can learn more about you. If you think we are a fit for your legal needs we can even have a conversation about what it looks like to hire our office to represent you in a divorce. 

Uncontested divorce

An uncontested divorce is the first type of divorce that we are going to talk about in today’s blog post. An uncontested divorce is a divorce in every sense of the word but does not carry with it the same type of emotion, combativeness, or degree of difficulty that a contested divorce does. Spouses who can agree to set aside their differences and focus on what is best for their families typically do best with an uncontested divorce. For that reason, this type of divorce may not be possible or even best for you. Let’s delve into what an uncontested divorce looks like. 

An uncontested divorce is one in which you and your spouse agree on every issue involved in your case. That’s right- I said every issue. Not most or a lot of the issues. For your divorce to be truly uncontested there must not be a contested issue among them. Depending upon how complex your case ends up being this is a huge hurdle to clear. On the other hand, if you and your spouse have a relatively simple divorce in front of you then it may not be so difficult to achieve an uncontested divorce. You all will need to look at your case and figure out where you all stand in terms of the divorce and whether yours can be uncontested or not. 

The reality of the situation is that your divorce circumstances will largely determine whether or not your case can be uncontested. It is not as if you and your spouse can sit down and smooth out every issue in your case regardless of what else is going on. Rather, you need to figure out if the framework is in place for an uncontested divorce before the case even begins. The most crucial element of an uncontested divorce is the ability of you and your spouse to be able to work together on the issues of your case. Even if you all have a general idea that your divorce is going to be uncontested that does not mean that the case necessarily will be. Rather, you all must still put pencil to paper (or fingers to keyboard) and figure out how to put an agreement in place that can potentially solve the problems in your divorce. 

A lesson that you will need to learn no matter what kind of divorce you find yourself involved in is that the details matter a great deal in your divorce. Teeny-tiny details are important. They will need to be figured out either at the beginning or end of a divorce so you may as well tackle them early while there is still time to plan around those details if need be. The subject of a custody schedule with your children is a good example. Here is how the small details of a custody case can determine whether or not your divorce can be an uncontested or contested case. 

What are the details in a child custody case that could determine the type of divorce you have?

Child custody cases are complex- especially when those custody cases take place within a divorce case. For instance, you will need to figure out conservatorship issues first and foremost. Conservatorship is a term that is found throughout the Texas Family Code while the term custody isn't found even one time. However, "custody" has sort of become a catch-all term that is used to describe any issue having to do with children. Judges and attorneys use the term just as frequently as the public. However, conservatorship is a legal term that relates to many of the most important aspects of your child’s life. 

For instance, you or your spouse will be named as the primary conservator of your children in the divorce. The primary conservator holds many important designations but the most critical for your divorce will be the parent who has the right to determine the primary residence of your children. This means that one of you will be able to choose where your child lives- assumedly it would be with you in your home. Next, the parent with whom the child lives primarily will also have the right to receive child support. Finally, that parent will also likely hold superior rights to decision-making for the child by this parent will be with the children more often than the other parent will. 

We need to examine this issue closely for our uncontested divorce conversation. Disagreements between parents on conservatorship issues, primarily around which parent will become the primary conservator of the children will help to determine whether your case will be uncontested or contested. If you were to ask me what issue is the single most likely to lead a couple to need to litigate their divorce in front of a judge, I would tell you that it would be primary conservatorship. If you feel strongly that you need to be the primary conservator of your children, and your spouse feels the same way, then you most definitely do not have an uncontested divorce on your hands.

If I were sitting in your shoes I would talk to my spouse early in the divorce process (or preferably before the case has even begun) about their thoughts on the subject of conservatorship. See what he or she thinks and then apply that to the information which we have discussed today. If it appears that you all agree on this subject you can dig deeper and see how you all want to divide up rights and duties to your children. The more investigation you do and the more agreement that you find the more likely you can have an uncontested divorce. The details, as we mentioned earlier, do matter in an uncontested divorce. You should consider your options and then move forward from there. 

The mechanics of an uncontested divorce

Let’s assume that you and your spouse have done all of the legwork associated with figuring out whether the two of you have an uncontested divorce on your hands. Once you have determined that an uncontested divorce is appropriate you can move forward with the case. One of you will still need to file for divorce. You would file in the county where you all live and are residents. This is not a blog on jurisdiction in a Texas divorce but know that to file for divorce in a particular county you or your spouse must have lived there for the preceding 90 days and been residents of the state of Texas for at least the preceding 6 months. We are going to assume that at least one of you meets these qualifications for today's blog post. 

Once an Original Petition for Divorce is filed then you have some options. You can pay to have a private process server or constable physically serve your spouse with the divorce papers. This is how it works in a typical divorce. However, since your divorce is uncontested you may choose to deliver the petition for divorce to your spouse along with a Waiver of Service. A Waiver of Service is a document that allows you to provide proof to the court that your spouse has been made aware of the divorce but is not equivalent to being “served” with divorce papers like in an uncontested divorce. 

The waiver of service would be included with the Original Petition for Divorce and completed by your spouse. He or she would waive their right to be personally served with the divorce petition. The Waiver of Service affidavit would be completed by him or she returned to you, and then ultimately filed with the rest of your divorce papers. Once the Wavier of Service is filed the two of you would set out to draft and agree to a final decree of divorce. The final decree of divorce contains all of the court orders that will instruct both you and your spouse on how to handle post-divorce matters like child custody, child support, conservatorship issues, property division, and any other matter related to your case. Once you have completed your Final Decree of Divorce you would sign the document and then wait the requisite sixty days from the date on which your divorce was filed to submit the document to a judge for their signature. Once the judge signs your decree the case is over with and you are divorced. 

Remember, an uncontested divorce is not a given. It is the exception rather than the norm when it comes to a Texas divorce. Most divorce cases are contested. However, if you believe that you have an uncontested divorce on your hands you need to discuss that with your spouse and see if you are right. Investigate the details of your case and then you can know for sure whether or not you should walk down the road toward an uncontested divorce.

Contested divorce cases

The other type of divorce in Texas is a contested divorce. As we just finished talking about an uncontested divorce it's probably not what you have on your hands. Rather, it is much more likely that your divorce is contested. This simply means that there are outstanding issues in your divorce case that you and your spouse need to work through to complete your case. This does not mean that you two are going to have the sort of divorce that you hear about in movies or television shows where the two spouses have an absolute knockdown, drag-out fight with each other. However, a contested divorce means that some issues need to be sorted out by the two of you before your case can be completed.

You would still need to file an original divorce petition just as we saw in the uncontested divorce. The major difference at this stage is that you would likely pay for a citation to be included with the original divorce petition and then served upon your spouse personally by a constable or private process server. The citation would then be completed by the process server or constable and then returned to the court once service has been effectuated. Right your spouse would then have approximately 20 days to file a response known as an Answer to your original petition for divorce.

the vast majority of your contested divorce case will see you and your spouse negotiating with one another on the outstanding issues of your case. Subject matter related to your children and your community state will be the primary points of emphasis on a contested divorce. You can negotiate with one another directly, through your attorneys if you choose to hire a lawyer and in mediation. Mediation is a process whereby the two of you agree to have a third-party attorney mediate your disagreements and help you to reach equitable conclusions to whatever issues are pertinent in your case.

Mediation is likely to be held at the beginning of your case before a temporary order hearing and then again at the end of your case before a final trial. If any unresolved issues come out of mediation then you would attend a temporary orders hearing or trial to submit your case to a judge. Both you and your spouse would submit evidence before the judge and the judge would determine any issues that the two of you could not settle on your own. Final orders or temporary orders will be drafted based on the results of mediation or a trial/temporary orders hearing. 

A contested divorce is not the end of the world. It is normal to have a contested divorce. the key for you to remember is that your divorce does not need to be the sort of battle that you may imagine a contested divorce to be. However, it does take some degree of patience and intentionality to succeed in your divorce no matter what the circumstances are. Having the right divorce attorney on your side can make a huge difference.

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

if you have any questions about the material contained in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.

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