Uncontested versus contested divorces in Texas

If you are considering a divorce, then one of the fundamental lessons which you will need to learn is the difference between a contested and uncontested divorce. This is a fundamental issue within the world of divorce in Texas. On the one hand, you have a process that involves fine-tuning agreements which you and your spouse have already come to. On the other, you have a situation where negotiations will be ongoing and the need to attend a trial exists. No matter what situation resembles your own more closely, you must be prepared for whatever steps you need to take within your case.

This is where you need to determine what kind of guidance and support you have at this moment as far as your divorce is concerned. It is a mistake to think that you will be able to go about the business of your divorce on your own without any assistance. Even if you plan on representing yourself in the divorce you will invariably come to a point where you will need help from another person to succeed in your case. However, most of us do not have the time or experience needed to achieve success in a family law case without hiring representation. There is nothing wrong with that, but you need to identify the needs of your divorce and your ability to meet those needs early in the divorce process.

Some of the most frustrated people that we run into here at the Law Office of Bryan Fagan are those folks who file for divorce once their own without an attorney only to figure out that they need more help than they assumed at the outset of their case. These folks get understandably frustrated due to their having to retrace their steps and go back to hire an attorney. There are several reasons why you or anyone else may start a divorce without a lawyer only to double back and hire one. However, what is common to all these situations is that you invariably would have made a mistake or two on your own and have cost yourself time in the process.

This does not have to be the path that you choose to go down. Rather, you have what it takes to make wise decisions for yourself when it comes to charting your course in a divorce. Start the process off on the right foot and determine where you stand before the divorce begins. Remember that the more times you need to take a step back and correct a mistake in your family law case, the more likely you are to have to spend money. Going back and spending money also means that you are losing time. That could be time that you otherwise would have devoted to your case or even time that you would have devoted to work or family time.

An uncontested divorce

When you think of a divorce, what comes to mind? If you are like most people, then an image of a courtroom with two angry spouses and their attorneys comes to mind. Yelling and screaming over money and the kids. A judge banging their gavel. At the end of the case, the judge read his decision from atop the bench down to the lowly participants who have to live by what was said for years to come. It's a courtroom or bust, in other words. What we need to ask ourselves is this what a divorce is really like?

The answer is: it depends. There are divorces where the participant spouses go to court almost immediately and begin to duke it out with one another. We see that this type of case occurs in situations where spouses cannot communicate with one another. There can be legitimate reasons why you and your spouse do not communicate well. For example, if there is a history of domestic violence then you probably do not have much of an interest in speaking to your spouse about any issue relevant to your marriage. Or, you both may have tried marriage counseling that did not succeed. You are now so fatigued from the effort expended trying to resolve the issues in your marriage that you just can’t bring yourself to negotiate with him or her any further.

When the lines of communication between you and your spouse have been torn to shreds then you are in a position where there is a lot of wasted time and opportunity. If at all possible, you and your spouse should think about attending marriage counseling before filing for divorce. We realize that this is not going to be a practical option for many people but for everyone else, this is an opportunity to see if you can avoid getting a divorce in the first place. An ounce of prevention is worth a pound of cure. Meaning that if you can avoid having to get a divorce then you would not need to learn about any of the methods, techniques, and assistance provided to you in this blog post. You can either attend counseling on your own or preferably with your spouse. Marriage and family counseling does not attempt to place blame on one spouse or the other but would rather help you and your spouse learn communication techniques and skills which can help you to avoid problems in the future.

However, when you are sure that the end of your marriage is approaching then you can begin to take steps towards determining what kind of divorce you have on your hands. At the end of the day, all divorces in Texas are resolved the same way. However, it's the process that you and your family utilize to get to that point where your divorce is over that can differ. In this blog post, we are going to help you differentiate between the two most common types of divorces. The first is called an uncontested divorce. You may be able to figure out just by reading the name that an uncontested divorce is one where there is going to be less arguing and fighting. For most of you reading this blog post that sounds like a welcome change from the type of divorce that we are used to hearing about from friends and on the news.

The difficulty with an uncontested divorce is that most people that go through an uncontested divorce have put in some time and energy towards working with their spouse on resolving the disputes in their marriage through discussion and informal settlement negotiation. Right off the bat, you can tell that if you and your spouse do not have strong communication skills or the ability to work together to resolve problems then an uncontested divorce probably is not in your future. However, we are still going to walk through what an uncontested divorce means for you and your family and what are the hallmarks of this type of case.

The overall direction of an uncontested divorce is designed to avoid a courtroom and instead focus on resolving issues between spouses. The starting point of an uncontested divorce is usually that both spouses in the marriage agree that the divorce is necessary. You do not see spouses trying to cast blame on the other person for having caused the failure of the marriage in an uncontested divorce situation. What you hear about from people who have gone through an uncontested divorce is that the case is looked at objectively and more as a business transaction than anything else. This is a cold and clinical way of approaching the end of your marriage but when you can remove emotion from the equation then the chances that you and your spouse are going to get extremely upset at one another throughout the case tend to diminish a great deal.

What you are left with is a circumstance where you and your spouse can begin negotiating the terms of your divorce even before the case is filed. This would be the preferable way to approach the case from a time and money standpoint. The more that the two of you have talked through the issues of your case before filing for divorce the greater the likelihood that your case will be able to remain uncontested until the very end. What you want to avoid is a situation where you believe that you have an uncontested divorce only to find out that there are certain issues in your case which are contested.

Even if there are just a handful of issues on which you and your spouse have not reached an agreement, that means you are not looking at an uncontested divorce. A true uncontested divorce is one where there is no disagreement between you and your spouse on any material issue. You both would come into the divorce with a basic framework for a settlement on all issues of your case. You may have slight disagreements when it comes to various areas of the case but those can be resolved through informal settlement negotiation or mediation. The overarching point is that you will not require the use of a courtroom when it comes to settling your case. Rather, outstanding issues in your case can be handled between you, your spouse, and your attorneys.

The more issues that exist in your case, the greater the likelihood that your case will not be uncontested. For example, if you have a complex estate and minor children involved in your case then those are two areas which almost surely will find that you and your spouse have some degree of disagreement between the two of you. This does not mean that you are doomed to go to court at every turn in your contested divorce. However, it does mean that some work needs to be done and the possibility of a courtroom appearance here and there may be necessary.

If you and your spouse file for divorce and are operating under the assumption that you have an uncontested divorce, then you can begin the case by saving some money. One of you will still need to file an Original Petition for Divorce, but you would not necessarily need to pay for a private process server or constable to pick up the paperwork from the courthouse to serve upon your spouse. It is more likely that your spouse would be willing to sign a waiver of service where he would agree to receive the paperwork directly from you and would not need to be served personally. This can save money and time.

Next, if you both have hired attorneys then the two sides can trade off settlement offers and counter offers regarding all issues of your case. Your attorneys will be able to help you determine rather quickly whether you have an uncontested divorce on your hands. The reason is that the attorneys will be able to tell you if the minor disagreements you have truly are minor or if they may require ongoing negotiation or even a need for a temporary order hearing. However, if you can have agreements on where both of you will live during the divorce, who will pay what bills, what happens to your house and other property after your divorce as well as children's issues agreed upon in principle then your chances of an uncontested divorce being maintained increase dramatically.

Even if you and your spouse have an uncontested divorce it is still a good idea to be able to take advantage of mediation. Mediation involves you and your spouse meeting with an experienced, third-party mediator who can help the two of you to fine-tune all of your agreements and get them down in writing. This provides you with peace of mind moving forward. Once the two of you sign a mediated settlement agreement there is basically no going back on what you had negotiated upon. Rather, a mediated settlement agreement will be the final order for your case. While an attorney will still need to draft an order that can be signed by a judge, the basic framework of the order will be encompassed within the mediated settlement agreement.

A contested divorce

Most of today's blog post has been spent discussing an uncontested divorce. The reason why we spent more time on uncontested divorces than we will on a contested divorce is that most of us are much more familiar with what a contested divorce is versus an uncontested divorce. A contested divorce is what most of you reading this blog post will find yourselves engaged in if you or your spouse filed to end your marriage. A contested divorce involves some degree of disagreement between you and your spouse on issues related to your marriage. Those issues could be related to your children, your property, or some other issue relevant to your case.

A contested divorce begins the same way an uncontested divorce does. Either you or your spouse will file an Original Petition for Divorce. However, it is more likely that you are not filing this divorce in agreement with your spouse and so personal service will be necessary. For this, you will need to hire a private process server or constable who can pick the paperwork up from the courthouse and then serve your spouse with a copy of your petition as well as a citation showing the date and time that he or she was served.

Your spouse will then have approximately twenty days to file an answer to your Original Petition for Divorce. However, bear in mind that just because your divorce is contested does not mean that your case is going to end up being one that looks more like a nightmare than a divorce case. You and your spouse will still be able to negotiate with one another directly or through your attorneys. Most contested divorces end up settling before a trial. You are likely to attend mediation before a temporary order hearing as well as before a trial setting. What we just finished discussing regarding mediation in an uncontested divorce also applies to a contested divorce.

At the end of your contested divorce if you were not able to settle your case then you would have the option to attend a trial and submit evidence for a judge's consideration. That judge would then issue orders that would determine the outcome on any issue that you and your spouse were not able to negotiate yourselves successfully. No matter the type of divorce that you are going to be involved in, having an experienced family law attorney by your side can help you and your family both in the short- and long term. Thank you for choosing to spend part of your day with us here on our blog.

Ebook

Adobe Stock 62844981[2] If you want to know more about what you can do, CLICK the button below to get your FREE E-book: "16 Steps to Help You Plan & Prepare for Your Texas Divorce"