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Frequently Asked Questions About Contested and Fault, Divorce

Unless you and your spouse have resolved all issues in a divorce, your divorce will more than likely be considered "contested". This doesn't mean that there is going to be a full-on assault to you, your sensibilities and your bank account, but that isn't necessarily ruled out either.

Read on as we answer some of the of our most frequently asked questions regarding contested divorce in Texas.

What is a contested divorce?

A contested divorce occurs when a couple fails to reach a mutual agreement regarding their divorce issues. Both emotional and legal factors can complicate the TX divorce process. Naturally, decisions regarding your children, your assets, and your future require thorough consideration and planning.

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

The first thing to understand is that an uncontested divorce is where two people come together, identify their issues, and agree as to how to resolve those issues. It means that both parties can create a settlement agreement and go to the court and get a judgment of divorce amicably without the need for court intervention or litigation.

How do I know if my divorce is uncontested?

Another way of saying uncontested is agreed. If you and your spouse agree on everything then your divorce is uncontested.

My spouse and I agree on being divorced is our divorce uncontested?

A divorce in Texas is about more than not being married. A Texas divorce involves resolving three Things:

  1. No longer being married
  2. What is going to happen with the children
  3. What is going to happen with property and debts

Unless your spouse and you can agree on all three issues than divorce is not uncontested.

What are some common disputed or contested issues in a divorce?

Some of the common issues and disputed matters in a divorce include:

  1. who will be awarded the home
  2. who gets to keep the retirement accounts
  3. Which parent will be awarded primary custody of the children
  4. The amount of child support
  5. The geographic area where the children will live in after the divorce is final

How long does a contested divorce take?

Few contested divorces can be finalized within 60 days. The average time for a divorce in the Houston area takes more than 12 months.

This is often due to the need for discovery in order to ascertain the value of property and debts as well as to narrow the issues. Busy court dockets, negotiations, meditations, and various motions can all increase the time it takes for a divorce.

What is involved in a contested divorce process?

The following are typical steps in a contested divorce process:

  1. Consult with an attorney
  2. File Original Petition for Divorce or respond to the petition
  3. Discovery
  4. Settlement
  5. Trial
  6. Post-trial Motions
  7. Appeals

Does Texas grant divorces based on marital fault?

Yes, Texas has six fault grounds for divorce.

Those grounds include:

  1. Living apart
  2. Confinement in a mental hospital
  3. Cruelty
  4. Abandonment
  5. Conviction of a felony
  6. Adultery

Should I file for divorce alleging fault?

A client and his or her Texas family law attorney should determine what other ground (or grounds) for divorce are most appropriate. Any additional grounds will be specifically stated in the Petition for Divorce.

How do I file for divorce based upon adultery?

Adultery is one of several grounds for divorce. In Texas, you need to tell the court the reason why you want to divorce your spouse, called a ground.

If you wish to file for divorce based upon the grounds of adultery, then your Original Petition for divorce must list this as a ground for divorce.

How do I file for divorce based upon abandonment?

Abandonment is another ground for divorce. In order to file for divorce based on abandonment, under the Texas Family Code Section 6.005 a spouse must show:

  1. that the other spouse left the marital home and did not intend to return, and
  2. the spouse will need to prove that the abandoning spouse has been out of the home for at least one year with no contact having been made with the spouse still living in the marital residence.

Can I ask for a divorce for multiple reasons?

Sometimes, more than one ground for divorce is listed in the Petition for Divorce. While this is allowed, having more than one ground for divorce will not necessarily carry any additional weight with the judge in the case.

Why Plead a Fault Ground?

If successful in proving a fault ground for divorce specified below the party may be able to a better division of the community estate.

Even if a fault ground is plead a Judge has the discretion of granting the divorce on the ground of insupportability instead.

In addition, if a spouse is eligible under the law to receive spousal support under Texas Law and a Judge is inclined to award spousal support then a Judge may consider marital fault when awarding the amount and duration of spousal support in the divorce.

For a long time in Texas (and many other states) a person who wanted to get divorced from their spouse had to specify the grounds for they are basing their divorce on.

This led to persons having to invent reasons why they are requesting the divorce when in actuality the reason was more or less just being tired of looking across the breakfast table and seeing the other person each day.

How do I find out if my spouse has cheated on me?

To find out if your spouse has been unfaithful to you, you may hire a private investigator who will assist you in that regard.

In addition, during the discovery process of a divorce, your attorney will have the ability to make discovery requests including subpoenas, depositions, financial documents, etc. that may help to show adultery has occurred.

Does cheating affect equitable distribution, alimony or child support in a divorce?

If successful in proving a fault ground for divorce specified below the party may be able to a better division of the community estate.

Even if a fault ground is plead a Judge has the discretion of granting the divorce on the ground of insupportability instead.

My spouse had an affair. Can I use this against him/her?

As previously discussed an affair can sometimes make a difference in the division of property. However, if there is no or minimal marital property divide an affair will have minimal impact on the outcome of the divorce.

My spouse is cheating on me so I win in the divorce, right?

Over the years adultery has become more common in divorce cases.

Adultery may or may not result in one spouse getting a higher percentage of the community assets. In general, the courts do not award an extremely disproportionate share of the community estate on the basis of adultery alone.

In most circumstances, adultery does not affect conservatorship or possession. Adultery may be an excellent reason for a divorce but it does not mean someone is a bad parent.

What happens if I cannot prove fault? Do I have to stay married?

As long as you have plead for divorce on the ground of insupportability you can still get a divorce even if you do not prove fault.

Our office unless instructed otherwise will always include the no-fault ground of divorce of insupportability so that this issue does not arise.

My divorce isn’t final yet, but my spouse has remarried. Isn’t this illegal? What can I do about it?

By entering into a marriage with one person while still legally married to you, he or she has committed bigamy which is illegal. It is very possible that this event can be used to strengthen your case.

We have handled cases where this has occurred. A marriage license to someone else prior to a divorce proceeding is very good evidence of adultery.

If I start dating someone before my divorce is final, can it be used against me?

In Texas, dating before a divorce can occasionally be used against you. Spending marital money on a lover can give your spouse a reimbursement claim. This means your spouse can ask that you reimburse the marriage for the money you spent on someone else.

Your spouse may also have a claim for being award a disproportionate share of the marital property. Dating can also give your spouse ammunition to contest or otherwise postpone your divorce to investigate and do discovery.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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