Contested versus Uncontested divorces: What is the difference

In the world of Texas family law, there are certain phrases that we tend to hear over and over. One of those phrases is an uncontested divorce. One would assume that there would be such a thing as a contested divorce if there is an uncontested divorce. What we need to figure out today is what each is, what their differences are, and why it matters to you. Thank you for joining us today on the blog for the Law Office of Bryan Fagan. We are going to cover this information in a way that will provide you with information while not causing you to fall asleep on your laptop keyboard.  Divorce is a complex and emotional process, and in Texas, the decision to be the first to file can come with its own set of disadvantages.

When you finish this blog post if you have any questions about what you have read, 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 helpful when you need specific information about your circumstances. We understand that you need to know how the law can impact you and your family. There is no other law practice in Texas that is better equipped to help you in this situation than our law office. 

Contested divorces- What you see more often than not 

When we think about divorces in the general sense it is more than likely a contested divorce that you are thinking about. A contested divorce occurs when two people disagree on at least one subject related to their case. The disagreement could relate to an issue with property division, child custody, conservatorship, child support, or any other subject in the divorce. More than likely you and your spouse have some disagreement related to your case that is in effect at the beginning of your divorce. As a result, you can expect that your divorce will be contested.

Contested divorces typically begin with the filing of an original divorce petition. This document may sound formal, but it is typically very general. You will introduce the court to you, your spouse, and any children that you have under the age of 18. From there, you will make any allegations as far as grounds for divorce. Different grounds for divorce could be adultery, cruel treatment, or abandonment. However, please bear in mind that it is not necessary to cite specific grounds for divorce in Texas.

The reason for that is that Texas is a no-fault state when it comes to divorce. A no-fault state means that you do not need to allege a ground for divorce to get divorced in the Lone Star State. Rather, all you need to do is specify that there are irreconcilable differences or conflicts and personalities between you and your spouse to get divorced. If you do have grounds for divorce, then you should take care to specify those in the original petition.

You may be wondering why it is beneficial to specify grounds for divorce when you do not need to get divorced in Texas. Why go through all the additional effort if you can still get divorced without doing so? The reason is that you can when a disproportionate share of your community property it is found that this ground for divorce had a material effect on the marriage and led to the divorce being filed. Additionally, specifying a ground for divorce that relates to your children could impact how custody and conservatorship matters are decided.

In a contested divorce, you will typically file your paperwork and then pay to have a process server or constable have your spouse served personally. However, it may be the case where you are not able to locate your spouse to have him or her served with the papers for your divorce. Additionally, your spouse may be purposefully avoiding service. This can delay your case and cause undue hardship in the process. Are there options for you to pursue if you are unable to serve your spouse personally with divorce papers? 

Fortunately, the answer to this question is yes. You can petition the court to have your spouse served with divorce papers by a substitute method of service. This just means that the court will allow you to serve your spouse using a method other than personal service. However, you will need to show the court that you have performed your due diligence in attempting to serve your spouse the old-fashioned way. This typically involves multiple, failed attempts at service as well as an affidavit from the process server or constable showing the court how many attempts were made. If you can do this then you are in a position to have the substituted service request approved by the court.

From there, once you can successfully serve your spouse with notice of the divorce, he or she will have until the first Monday after the expiration of 20 days after service to file an answer. If he or she fails to file an answer by this time the result of that, is he or she will technically be in default. From there, you can proceed to court once the expiration of 60 days has occurred from the date you filed your divorce case. If the court shows that you have served your spouse validly and that you have waited the requisite period, you can obtain a divorce from him or her further action. This is to your advantage because you can draw up the terms of your divorce without having to negotiate with him or her. Therefore, if you have been served with divorce papers it always pays to participate in the process rather than to ignore the situation.

An overview of a contested divorce

Most contested divorces result in you and your spouse attempting to negotiate your way through the issues of your case. The more complex and the more issues there are in your case the longer your case can take to complete itself. Fortunately, courts require you and your spouse to mediate the case before going to a temporary orders hearing or trial. Mediation allows for you and your spouse to have your case brought before an experienced family law mediator. That mediator can help you to complete a settlement in your case and avoid courtroom time. Mediation involves a mediated settlement agreement being created that your court orders will be based on. Most divorce cases in Texas settle in mediation rather than go to a trial.

The two main reasons why you may end up in court for your divorce would be to attend a temporary order hearing or a trial. A temporary order hearing it’s exactly what it sounds like. This is an opportunity for you and your spouse to present cases to the judge that will help establish temporary rules for your divorce. These temporary orders will be in effect until your divorce comes to an end. Another important thing to take note of is that your final orders in the divorced 10 look a lot like the temporary orders that you and your spouse agreed to. Therefore, it is critically important for you to pay close attention to these temporary orders and to make sure that they fit your situation well.

A trial is the most meaningful step in a divorce case that is contested. A trial involves presenting evidence to a judge regarding all the relevant matters in your case. For instance, if you have children all custody and conservatorship issues will be brought before the judge. A judge will be the final arbiter of who will be named as the primary Conservatory of your children, which parent will pay child support, what a visitation schedule will look like as well as how much child support will need to be paid. Even if you don’t have children, a trial is extremely important. The trial will cover matters like the division of your community property estate.

Without a doubt, a contested divorce is a situation where it is incredibly important for you to be prepared throughout the case. There is no better way for you to prepare for a contested divorce than to work with an experienced attorney with the Law Office of Bryan Fagan. Our attorneys offer free-of-charge consultations six days a week where we can meet with you and go over your specific situation. We serve clients every day in the courtrooms of Southeast Texas and are equipped to do the same for you and your family.

Uncontested divorce: something to aspire to

an uncontested divorce is one where there is no disagreement between you and your spouse on any matter of importance. By reading that sentence, you can probably tell just how rare of a situation this is. After all, if you and your spouse did not disagree on some area related to your case you probably wouldn’t be going through a divorce in the first place. Usually, people who have an uncontested divorce on their hands know about the divorce in advance. This means that if the divorce catches you by surprise, then your divorce probably is not going to be uncontested. Rather, spouses who are going through an uncontested divorce typically work with the other person in advance of the case being filed to fine-tune their settlement agreement so that the divorce does not have to take any longer than is necessary.

Another reason contested divorce is difficult to accomplish if only because you and your spouse need to be in lockstep agreement on those subjects that are most crucial to your case. If you differ in opinion on any matter of your divorce then it is, by definition, not an uncontested divorce. Therefore, if you seek an uncontested divorce then you need to reach out to your spouse in advance and talk to him or her about what you are going through. If the two of you can work together to handle this type of situation together then you may be in line for a shorter and easier divorce. However, if you find that you have even minor disagreements between yourselves, and this is not under the ordinary but will still not make for an uncontested divorce.

An uncontested divorce will sometimes begin with a waiver of service being filed as opposed to an answer. A waiver of service means that a party understands that he or she has the right to be served with notice of the divorce by a process server but instead is waiving this right. That does not mean that he or she is waiving the right to be notified of any pending matters related to the divorce. However, what it does mean is that the parties do not see this as being a conflict-filled divorce. A waiver of service can be filed with the court and then you and your spouse can proceed to negotiate on any matter relevant to the proceedings that you are going through.

You need to be careful about proceeding to an uncontested divorce. The truth of the matter is that you can harm yourself in the long term if you assume that your divorce is going to be uncontested, but it ends up not being so. 

Don’t leave it to chance- pursue information

For example, let’s say that you are a woman going through a divorce from your spouse who is a small business owner. Your business owner’s spouse may have taken care of the family finances for many years, and you may be relatively in the dark when it comes to matters related to money. This may have suited you and your family well during your marriage but could be a disaster waiting to happen now that you are going through a divorce. The reason I say this is because by electing an uncontested divorce and not going through the normal divorce process you may be skipping over rights and benefits that you otherwise could have taken advantage of.

Using our example here of a spouse who is a small business owner, he may be misleading you about the value of his business or the debt that is on the business. This could lead to a situation where you end up agreeing to things in the property division part of your case that you otherwise would not have done had you known more about the situation. Sometimes in an uncontested divorce parties choose not to engage in an exchange of information known as discovery. Had you chosen to engage in discovery you may have learned things about yourself as fast as business that would have given you reason to reconsider the uncontested divorce. 

Therefore, you need to be sure that what you are signing up for in an uncontested divorce is in your best interest. Sometimes, a person will sign up for an uncontested divorce thinking that it is best for the family if the divorce is concluded quickly. However, this is not a worthwhile goal for your family, either. You should take the steps necessary to educate yourself on the divorce circumstances you are facing and how Texas family law will interact with those circumstances. A quick divorce now could end up being a disaster for your family in the long term.

Final thoughts on uncontested and contested divorce in Texas

While some elements of uncontested and contested divorces in Texas are similar the process overall is quite different from beginning to end. You need to be confident that whichever route you take is the best for your family. In many cases, the situation you find yourself in will be decided for you. Frankly, not many of you will be able to embark on an uncontested divorce or even consider one. However, for those of you who find yourself in a situation where an uncontested divorce may be possible, you should consider your options and think critically about what you are about to go through. You should not necessarily agree to an uncontested divorce to avoid acrimony or two avoid a fight that may occur during the divorce itself. Even an unpleasant argument during a divorce can be better than a lifetime of regret over agreeing to something that you should not have in your case.

Finally, even if your divorce is uncontested then you should still consider the benefits of working with an experienced family law attorney. The attorneys with the Law Office of Bryan Fagan can work with you on a flexible basis where you determine how much involvement an attorney needs in your case. Call us today to discuss your options and for a free-of-charge evaluation of your case and your circumstances.

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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