Not is the divorce process less than fun, but it can also be confusing. Take, for instance, the idea of a contested divorce. You may be surprised to learn that there are such things as an uncontested divorce. Hence the reason why we feel the need to specify that divorce is either contested or uncontested. When we go through the complexities of divorce so much can get lost in the discussion. In a blog post like today from the Law Office of Bryan Fagan we hope that there will be nothing that is lost to anyone reading this blog post.
Rather, we want to be as clear as possible that two different kinds of divorce cases are vastly different from one another. The two kinds of divorce cases in Texas, broadly speaking, are 1) uncontested and 2) contested divorces. Depending upon what kind of divorce you have on your hands you may be looking at a relatively simple or a relatively complex and lengthy process in terms of time. However, before you can get worried about what kind of your divorce is, why not spend some time with us today walking through the divorce landscape so you can plan better for the actual case that you are going to be involved in?
As always, 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 per week in our offices, over the phone, and via video. With so much potentially at stake in your divorce you need to be ready for whatever circumstances come at you in connection with your case. Fortunately, you have resources available to help you prepare for your case. We are honored that our office can be one of those resources and we look forward to hearing from you with any questions about what you have read.
First, let’s discuss what an uncontested divorce is. On the positive side, uncontested divorces are the better of the two types of divorce to be involved in for reasons we are about to get into. On the negative side, most divorce cases in Texas are not uncontested so most of you reading this blog post will not be able to take advantage of the process that we are going to talk about here. However, since some of you will have uncontested divorce cases it is a subject that we need to go over. More than that, by discussing what an uncontested divorce is we can better understand what a contested divorce is by being able to draw distinctions between each type of divorce.
Divorce is a civil law case under the broad umbrella of family law. As with most civil cases conflict is at the center of a divorce. That conflict could relate to children, infidelity, finances, or some combination of those issues. There may be other issues that are underlying the problems in the marriage which have led to one of the spouses filing for divorce. Whatever the situation is that led to the divorce, know that once you have filed for divorce there are specific reasons or “fault grounds” for divorce that can be specified in the Original Petition Divorce as to why the divorce is being filed.
The conflicts that led to your divorce being filed often lead to specific issues that need to be negotiated and ultimately litigated in your case. If you filed for divorce because your spouse was not respecting your authority as a co-parent you may then need to negotiate extensively on that subject to come up with a resolution to your divorce. This is the process that most of us are familiar with when it comes to a divorce in Texas. You file the divorce petition; the judge sets your case for a temporary order hearing and you see if your spouse will work with you to resolve those issues.
However, in an uncontested divorce, this is not how things work. In an uncontested divorce, there are no issues that are being contested. This is not to say, however, that there are zero disagreements between you and your spouse. After all, if there were zero disagreements between you and your spouse you wouldn’t be getting a divorce in the first place. Nobody is debating that there aren’t some serious issues in your marriage. However, the point that we are making in today’s blog post is that you don’t have to turn those disagreements into arguments and arguments into divorce-related fights.
Rather, you can agree with your spouse that you are not going to resort to using the courtroom to settle disputes and are instead going to work together to solve the problems in your marriage using the tools and techniques available to you. Rather than going in headfirst towards the conflict, you two are going to be patient with one another when it comes to the issues in your divorce in hopes of finding a middle ground that is appealing to both of you. With any luck, you will find that the settlement is arrived at quickly so that you do not have to spend more of your life in the divorce case than is necessary.
To start with an uncontested divorce probably needs to be something that you and your spouse discuss before either of you files for a divorce. Communication is important in every divorce, but it is especially important in an uncontested divorce. It is not a surprise to find yourself in an uncontested divorce. Rather, you will know right from the start that yours is uncontested. An uncontested divorce is not something that you have to wonder about. Rather, you and your spouse should take the time out to discuss this matter with one another before an Original Petition for Divorce is filed.
I like the idea of having this conversation with no kids around, no televisions on, and with your phones secured away somewhere. Distractions tend to destroy the cohesive conversation. Eliminate distractions and you and your spouse can get down to the business at hand. If you are willing to put aside your major differences and focus on solutions and settlement negotiations, then you can inquire about an uncontested divorce. Simply having the conversation with your spouse before a divorce begins is a good sign that the two of you can have a productive experience whether your case
As a rule of thumb, the simpler your case is the more likely that it can be an uncontested divorce. Simple divorce cases have fewer issues and therefore fewer opportunities to spend at each other’s metaphorical throats with anger and antipathy towards one another. If you can look at a divorce and see that the issues between the two of you do not run that deep, then yours is a case that is a prime target for uncontested status. Not only are simple divorces more apt to be uncontested but they are also less emotionally draining. For example, if you and your spouse do not have children then you have much fewer issues to sort through in your case and fewer opportunities to let your emotions get the better of you. Emotional and complex divorces are among the most likely to be contested rather than uncontested.
An Original Petition for Divorce must still be filed no matter if you are involved in an uncontested divorce or a contested divorce. An Original Petition for Divorce simply introduces the court to both you and your spouse. The uncontested divorce is based upon the idea that whatever issues exist between the two of you, you all will not resort to using the courtroom to settle those issues. Rather than having to serve your spouse with notice of the divorce being filed your spouse would agree to sign a Waiver of Service. This document waives your spouse’s right to personal service and puts you all in a position where you do not need to pay a private process server or a constable to pick up the divorce papers from the courthouse and then serve your spouse.
Rather, you send your spouse a copy of your Original Petition and a copy of the waiver. Your spouse can review both and sign the Waiver of Service in front of a notary. That notarized copy of the waiver of service can be filed with the court as an indication that your spouse is ok without being personally served. Your spouse will still be entitled to be provided notice of any hearings or deadlines in the case from the court. However, the waiver of service is an indication that a typical, contested divorce is not on the horizon. At least not yet that is.
From there, you have a few different options available to you when it comes to trying to resolve your divorce. Keep in mind that while you and your spouse may be attempting to finalize an uncontested divorce that does not mean that you all can bypass the 60-day waiting period for divorces to be finalized. This means that from the date on which you filed for divorce until the day that your divorce is granted by a judge a minimum of sixty days must have passed. Therefore, you will have plenty of motivation to take some time and think through the issues of your case to find resolutions. It is not a race and there is no fast track available for uncontested divorce cases.
You are still going to be responsible for coming up with solutions to matters related to dividing community property and child custody/conservatorship. Sometimes you will find that you and your spouse have ready-made solutions for these subjects. In other circumstances, you will find that you still have problems that you need to work through, but you are more committed to most than working with one another on solutions rather than going through hearings and trials with a judge.
One last thing to note with uncontested divorces: they can become contested at the drop of a hat. Just when you think that you and your spouse have resolved all the issues in your divorce another one rears its ugly head, and you find yourself unable to work out a solution to the problem. Again, the more complex your divorce case is the more likely it will be that there will be some subject that the two of you must work out solutions to with a judge. This isn’t to say that you all will get fatigued of all that settlement negotiation the more complex your case is- although that certainly could happen.
Rather, you can work with your spouse on issues related to your divorce only for so long until you reach an especially contentious topic. This does not mean that your case is bound for a trial or that you will not be able to work out solutions to your problems. Rather, accepting that you cannot negotiate your way through every issue in your case is just being realistic. Sometimes if you need to set up a temporary order hearing it can be a good thing in that you can begin to focus your time and attention on a deadline. These deadlines often spur action and that may be exactly what you need to get your case moving in the right direction once again.
Contested divorces are the net result of contesting a divorce, to answer the question posed by the title of today’s blog post. When you contest a divorce that means that you are going through with the type of divorce case that almost everyone reading this blog post will have on their hands once you have decided to either file a divorce or respond to a divorce filed by your spouse. A contested divorce means that you have issues that may require the assistance of a family court judge to work through. Note that this does not mean that you will necessarily have to go through with a family court trial or even a temporary orders hearing.
However, it is an acknowledgment that your case is headed in that direction if you cannot resolve the issues of your case through negotiation. It is normal to have contested issues in a divorce. This is a reflection of two important realities in connection with your divorce. The first reality is that you and your spouse are ending your marriage because of the complex nature of your problems. You may have incredibly deep-set issues that need to be sorted through and the only avenue available to you to solve those problems is through a divorce.
The other reality that is worth mentioning here is that only know so much about how to problem-solve your way out of these solutions. This reality should give you a great deal of hope not only when it comes to divorce but also regarding how to avoid divorce if that is a motivator for you. These complex problems often require complex solutions. While you may have readily identified problems you may be experiencing some problems with identifying solutions. With that said, a contested divorce may be the avenue by which you find solutions to those problems. The combination of a sincere attempt to settle your case through negotiation and a foray into the courtroom may be where your case needs to go to settle the disputes relevant to your family.
If you are of the mind that a divorce is not necessary then a contested divorce may be what you need to show you and your spouse that you can work through the problems in your marriage in a creative fashion. The problem may have been that the two of you were not aware of those potential solutions previously. After all, if this is your first divorce case then you may simply be unaware of the great solutions that were staring you right in the face. With that in mind, intense settlement negotiation with the knowledge that you may need to go to court in the future to resolve your issues could be just what you need to not only survive a divorce but avoid one altogether.
At the end of the day, no matter what case you have on your hands it is a great idea to consider your options when it comes to legal representation. The attorneys with the Law Office of Bryan Fagan are ready to assist you with any questions or problems that you have not only about your case but about divorce cases in general.
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, then 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’s circumstances may be impacted by the filing of a divorce or child custody case.