Analyzing the Difference Between Contested and Uncontested Divorce in Texas

In Texas, there are two different types of divorce cases that you may become involved in. The first is a contested divorce and the second is an uncontested divorce. You can find as much information as you could even want to read about divorces here on the blog for the Law Office of Bryan Fagan. We aim to provide you, our neighbors, with the information that you need to make good decisions in your lives when it comes to family law. Whether you live in Baytown or Bellaire, our office and attorneys are here to help you. We serve our clients and we do not take that responsibility for granted.

There are some major differences between uncontested and contested divorces. How you go through each of them, the process involved, and the emotions and time commitment required of each are quite different. That is the subject matter that we will be hitting on in today’s blog post. How do you know if your divorce is contested or uncontested? What impact does the type of divorce have on your children? Is there anything you can do to cause your divorce to be one or the other? These are the sort of questions that we will be answering today.

Before we go any further, I wanted to make sure that you knew the Law Office of Bryan Fagan has opened two additional offices here in the Houston area. Our “home” office is located on Cypress Creek Parkway/FM 1960 just east of the Champions area. That is where you can always find our team of legal assistants, financial ambassadors, paralegals, and attorneys working hard for our clients. We have recently expanded our office space to accommodate our clients and team. If you have not done so, drop by sometime to see the changes that we have made to even better focus on our clients.

We also have two additional office locations: in Humble and Kingwood. These locations have been opened to offer more convenience to our clients who live on the east and northeast sides of Harris County. Driving across Houston is no picnic- we know that. To make life easier for you during a time when everything else may be making life more difficult we have opened these offices to clients and potential clients so that you have a place to come and speak to an attorney who cares about people and has the heart of a teacher.

Having the heart of a teacher means that while our attorneys can be bulldogs in the courtroom and at the negotiating table, it also means that we want to be able to provide you with information so that you can make informed decisions for your family. All of the fancy “lawyering” in the world isn’t worth much if it doesn’t amount to your being able to work through problems confidently within your case. Information is power in a divorce, and our attorneys seek to provide you with the information you need to proceed better in your divorce case.

For a free-of-charge consultation with one of our licensed family law attorneys 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 can help you focus on the most important issues of your potential family law case. It is not a good strategy to aimlessly move from topic to topic with no stated goals or purpose in mind. Rather than worrying yourself to sleep each night why not speak to one of our attorneys today? We can work with you to discuss your case and make sure you know why our team of attorneys and staff are the best in Houston when it comes to family law.

What is the difference between a contested and an uncontested divorce?

There are some major differences between contested and uncontested divorces in Texas. A contested divorce is the type of divorce in which you are most likely to be involved. Contested divorces more often involve two spouses that disagree with one another on at least one issue. That doesn’t mean that you and your spouse have to be at each other’s throats or that you cannot even be in the same room together. Reasonable people can disagree on important matters. A contested divorce simply means that you and your spouse are people that disagree on at least one subject within your divorce. It may not even be a major disagreement. All you have to understand is that if you and your spouse are not in lock-step agreement on all issues at the beginning of your case then yours is a contested divorce.

An uncontested divorce is one where you and your spouse are not contesting any issue relevant to your case. You and your spouse agree, therefore, on the issues that are involved in your divorce. Preferably the two of you would have worked out your differences and come to specific agreements on subjects like a possession schedule for your children and how to divide up your community estate. This can make your uncontested divorce even simpler and easier to handle for all parties. Sometimes people go into what they believe will be an uncontested divorce and find out that theirs is a contested divorce. This happens when trying to negotiate through a subject in greater detail, parties find out that they may not be marching in lockstep, after all. That’s ok- it just means that you all would need to follow the process related to a contested divorce.

Your divorce is unique to you and your spouse. No two divorces are exactly alike, which is part of the reason our attorneys enjoy our jobs so much. Not only do we get the opportunity to serve our clients but also can think creatively out of necessity due to each case we handle is unique. What we did in serving a client last week will not necessarily have the same positive impact on you and your case. As a result, we are constantly learning and growing in how we represent clients so that you can be as ably represented as possible in your divorce.

Where do you start in a contested and uncontested divorce?

Hopefully, by now you have a good idea of what kind of divorce yours is likely to be. Again- your case can go from one to the other before filing. However, we will start by discussing the beginnings of a contested divorce because that is what your case is likely to be. A contested divorce begins by filing an Original Petition for Divorce. This is the document that tells the court of your intention to divorce your spouse. It also introduces your family to the court including your minor children. Any relief that you are asking from the court will be stated in your Original Petition for Divorce. This is not an overly detailed document, but it is a necessary one. You will file this document with the county or district clerk in whichever court has jurisdiction over your case.

Jurisdiction means that a court has the ability and right to issue orders related to your family. For a Texas court to gain jurisdiction over your case, you must first be a resident of Texas for at least six months. Next, you must have lived in a specific county for at least the past ninety days. You can have multiple courts with jurisdiction over your case given that you may live in one Texas county while your spouse resides in another. You can choose the county with the appropriate jurisdiction and then file your case there.

A citation will need to be paid for when filing your petition. The citation will inform your spouse of their legal rights as far as filing an Answer to your Petition for Divorce. Additionally, the citation will need to be filed with the court once your spouse has been served with the divorce papers. Service means that your spouse has a right to be made aware of your filing for divorce. You can file an Original Petition but until your spouse is notified and made aware of your doing so the case has not truly begun. A private process server or constable can pick up the documents at the courthouse and then physically hand them to your spouse to have him or she served with notice. Once service is “effectuated” the citation will be returned to the courthouse by the process server or constable.

Your spouse will have approximately twenty days to file an Answer to the Original Petition. The answer usually comes in the form of a general denial of the allegations that you made in your Original Petition. Along with the Answer your spouse may choose to file a Counterpetition for Divorce which will include their allegations and requests for relief. From there, you and your spouse can set your case for mediation, submit discovery requests to each other, and generally begin the negotiation process for your case.

An uncontested divorce follows the same general timeline as a contested divorce but with some major differences in approach and process. An uncontested divorce begins with the filing of an Original Petition for Divorce, just as an uncontested divorce will. Here is where the main difference between contested and uncontested divorces first appears. In an uncontested divorce, your spouse would likely be made aware of your intent to file for divorce before you do so. This will give him or her time to prepare a response. If you all believe that you agree on the issues in your case, or if the issues are so few that you all do not need to contest anything, then you can decide to not have your spouse served with notice of the divorce through a process server or constable.

Rather, you may choose to talk with your spouse about filing what is known as a Waiver of Service. This document effectively serves as your spouse’s Answer to your divorce petition having been filed. In a Waiver of Service, your spouse would tell the court that he or she waives their right to be personally served with notice of your having filed for divorce. Instead, your spouse will accept the divorce petition directly from you which can save time and money. Not only are there fees associated with filing your divorce but there are costs associated with hiring a process server. In the grand scheme of things these costs may not be significant, but they can add up over time. A Waiver of Service can be completed by your spouse, returned to you, and then filed with the Court.

Negotiations in a contested and uncontested divorce

Most of a divorce is spent negotiating the issues of your case with your spouse. This may be a surprise to you as television and movies make divorce out of a situation where the parties to a case are constantly in the courtroom arguing over a seemingly never-ending stream of issues. The judge is banging their gavel on the bench while the attorneys are making themselves rich in the process. Sound familiar? It may be a familiar storyline on the various screens that we watch but it is far from the reality that you are likely to encounter in your divorce.

On the contrary, your divorce is more likely to be a situation where there are long periods where no courtroom appearances occur- this is true in an uncontested and contested divorce. In an uncontested divorce there should not be any courtroom appearances until the end of your case where you or your spouse attend what is known as a prove-up hearing with the judge. This hearing involves reviewing your documents while you answer scripted questions from your attorney about the contents of your final decree of divorce.

In an uncontested divorce, you will still need to negotiate your final decree of divorce. You may encounter differences of opinion on these subjects- we have already talked about how differences of opinion within an uncontested divorce are possible. However, the hallmarks of an uncontested divorce are that you expect to be able to work out these issues directly with your spouse rather than require the use of a courtroom to have a judge make those decisions for you.

You and your spouse may be able to negotiate through all of the issues of your case quickly. However, you should know that even in an uncontested divorce you and your spouse will still need to wait at least 60 days from the date your divorce is filed to complete your case. Contested divorces will take longer than 60 days to complete in most situations.

In a contested divorce, you and your spouse will negotiate through the various issues of your case. The more complex your case the greater the need to attend mediation. Mediation is a process where you and your spouse will agree to name a neutral, third-party attorney to oversee settlement negotiations. Likely you and your spouse will go to the office of the mediator to make settlement offers and counter offers to one another. The mediator will be present to facilitate those negotiations and also offer information that can be helpful to both sides.

If you and your spouse can settle all the issues of your case in mediation then a trial will not be necessary. The mediators will produce a mediated settlement agreement which will contain all of the settlement agreements that you and your spouse came up with. it is up to you and your spouse to make sure that those agreements are fully contained in your final decree of divorce. This is one of the final steps of a divorce. Once you and your spouse are satisfied with how the final decree of divorce reads, both of you will sign the document and have it filed with the court.

No matter if yours is a contested or uncontested divorce there are likely to be issues and circumstances that arise which were previously not accounted for. When this happens in a divorce it can be a helpless feeling. However, by having the assistance of an experienced family law attorney you can better react to unforeseen challenges and come out the other side with a plan to move forward in your divorce. Having an experienced family law attorney representing you and your divorce can also help you to be more proactive to avoid potential problems down the road.

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