An uncontested divorce is what everyone who goes through a divorce would like to have. An uncontested divorce is where there are no outstanding issues between you and your spouse in that you agree on every issue irrelevant to your case. This means that when it comes to problems in your marriage you acknowledge that there are problems and are willing to meet in the middle And settle in advance the outstanding issues of your life. There are many advantages to doing it this way not the least of which is saving yourself time money and stress.
What does this mean for you and your family? Is an uncontested divorce Something that could be in the future for your family or is your divorce more likely to be one of a contested nature? In today's blog post I'm going to spend some time discussing with you what it means to go through an uncontested divorce in Texas. For the most part, uncontested divorce does not require the assistance of an experienced family law attorney. However, there are certain situations where an attorney can be helpful to you.
For one, having an attorney available to help you set up something called mediation can be a better alternative than simply negotiating settlement informally with your spouse. The most important reason why I would tell you that this is the case is that a settlement agreement can be negotiated informally with your spouse can be pulled back or retracted at any time by either you or your spouse. You all could swear on a stack of bibles that you promise to abide by the settlement agreement only to see one or the other go back on their word. There is nothing legally binding about an informal settlement agreement with your spouse. Either of you is legally able to Go back on your word and suffer no consequences for doing so
Mediation puts you both in a situation where are you agreed to settle your case with an experienced mediator, and you can turn that agreement into a mediated settlement agreement. A mediated settlement agreement cannot be backed out by either you or your spouse. Once you agree to something in mediation it cannot be backed out by either you or your spouse this should give you some degree of confidence when it comes to being able to honor the agreement that you reached. Compare this to a situation where you reach an informal settlement agreement with your spouse and the agreement that you reach has no legal importance.
Mediation can cost you anywhere from a few thousand dollars to a few hundred dollars depending on the mediator. Mediation can be obtained through your county domestic relations office, a private mediator, or even a former judge. You should consider your options and determine whether You feel comfortable moving forward to this stage of a case without a lawyer. It may be that You can hammer out an agreement with your spouse but may need an attorney to help you get that agreement into writing.
When is your case a contested divorce?
Many people assume that they have been an uncontested divorce on their hands just because they and their spouse have a cordial relationship and are not arguing with each other about different subjects currently. However, just because you and your spouse are on speaking terms with one another and have a general agreement on most issues related to your divorce does not mean that your divorce case will be uncontested. Rather, several factors could be at play if your case is considered to be uncontested. Let's walk through what an uncontested divorce does not look like before we can talk about what your uncontested divorce may look like for you and your family.
As we just finished talking about if you and your spouse disagree with any issue in your divorce then your divorce is not properly classified as uncontested. The more issues in your divorce the less likely your case is to be considered uncontested. I could see a divorce between two young people who have not been married very long and have no children as being more likely to be uncontested than a divorce where you and your spouse have minor children and have been married for many years. The longer you've been married increases the likelihood that there is a substantial amount of Community property to divide as well as there being issues related to selling property and general misunderstandings or disagreements about various subjects related to your case. In that circumstance, your divorce would be better classified as contested.
If you or your spouse want to file for divorce based on specific fault grounds, then your divorce is not uncontested. Texas is a no-fault divorce state which means that you can get divorced in Texas for no specific reason at all. Rather, all you would need to be able to say is that you and your spouse have a discord or conflict in personalities and that you do not believe reconciliation is possible. In that case, you could get divorced simply by filing the case. It is a relatively recent development where people who have no specific fault ground for divorce can be legally entitled to in their marriage simply by following the steps of the divorce process. uncontested divorces meaning that you are not trying to argue any specific fault ground.
On the other hand, if you believe there is a specific reason why your marriage came to an end then you may be interested in arguing for fault grounds in your original petition or your counter-petition. Examples of fault grounds for Texas divorces include Adultery, abuse, neglect, abandonment, or cruelty. By asserting one of these fault grounds for divorce you potentially put yourself in a position to be awarded a disproportionate share of your community estate. There is nothing wrong with asserting fault grounds for a divorce in Texas. However, if you plan on doing so then your divorce is most certainly not uncontested. You would need to proceed based on your divorce being an ad fault divorce and is contested in nature.
If your wife is pregnant then you should not proceed with an uncontested divorce. This is true even if you are not the father of the baby. Having a pregnant wife during a divorce means that you cannot officially become divorced until the child is born. Even then, additional steps need to be taken to ensure that you are not named as the legal father of the child. For example, you and your spouse would likely file documents where you deny paternity. In that case, the judge would override the presumption that the husband of a pregnant woman is that child father in the court would not be able to assess child support against you. Even if you and your spouse agree that you are not the father to the child it would still not be appropriate to call yours an uncontested divorce. The same general concept applies if you had a situation where your wife gave birth to a baby who is not your biological child.
For example, consider a circumstance where your wife gave birth to a baby recently that you had assumed was your child. However, once the baby was born it became apparent that the child was not your biological son or daughter. At which time you realize that your spouse had an affair in that you felt divorce was better for all parties. Even if your spouse agrees and you have no truly outstanding issues it is not as if you can classify your case as an uncontested divorce. Rather, you would need to proceed as if your case was contested since you would need to be classified as not being the child's biological or legal father to avoid having to pay child support or provide care to that child in the future. In a situation like this, it would be advisable to have an attorney by your side to make sure that you protect your rights and those rights of your wife’s child.
If you and your spouse have a child together and that child is disabled, then I would not recommend proceeding with an uncontested divorce. An uncontested divorce is not as detail-oriented as a contested divorce. This means that some of the finer points of a contested divorce are not as closely followed in an uncontested divorce. The least of those concerns should be that you and your spouse should not glaze over or disregard how you negotiate through different issues in your case when it comes to negotiating health insurance benefits for your child, additional child support if necessary and any other logistical concerns that you have regarding your disabled child.
Simply put, there is more at stake and more to discuss when it comes to a contested divorce with the disabled child than in an uncontested divorce. In an uncontested divorce, the parties frequently will get through the case as quickly as possible because the issues have already been settled upon. When you have a disabled child more care needs to be applied to those issues of your case related to conservatorships, custody, and child support. While you and your spouse can be on the same page and can agree on many of these issues it is not as if you can afford to pay less attention to anything in your case when you have a disabled child.
By the same token, if you and your spouse have a biological or adopted child together who is either under 18 years old or is 18 years old and still, in high school, it is not recommended for you to attempt to obtain an uncontested divorce. The same general principles apply to this child as they did to a child who was disabled. When you consider that a disabled child has needs that may not be met by typical court orders that is likely what you are getting in a contested divorce. Children of any kind require specialized care and consideration.
It is less likely that an uncontested divorce will provide you with that level of care and forethought. An uncontested divorce takes an agreement that has been reached between two parties and puts that agreement into writing for a judge to sign off on. With minor children, there are issues related to child support, custody, conservatorships, and a range of other topics that need to be thought about. Almost certainly you and your spouse do not agree on every issue related to these subjects. Therefore, your divorce is more properly classified as being contested.
If spousal maintenance or contractual alimony needs to be a part of your divorce case, then it is likely that your divorce will not be uncontested. Spousal maintenance and contractual alimony are more classically and commonly referred to as alimony. When do you receive spousal support after a divorce it is either because of negotiations between you and your spouse or because of a judge ordering support to be paid? Contractual alimony is when you and your spouse negotiate a settlement on post-divorce support. On other hand, if you all cannot agree on spousal support and need to have a judge determine whether assistance is necessary then any post-divorce support ordered by a judge is known as spousal maintenance.
There is too much at stake when it comes to spousal maintenance or contractual alimony for you to classify your case as uncontested. You all will need to determine the length of any spousal support, the amount, how it will be paid in a host of other topics. Again, the level of detail that needs to go into this type of discussion is simply too much for a family court judge to consider uncontested. Therefore, you should file a contested divorce and proceed as such. Even if you and your spouse agree on most of the issues in your case that still does not mean that you have an uncontested divorce.
Finally, if you own a family house, business, rental property, or any other kind of real property with your spouse then your divorce is not properly classified as being uncontested. Just like we saw above with minor children some issues need to be hammered out when it comes to real property ownership in a divorce case. With as many moving pieces as there will be on this subject, you are very likely to find yourself disagreeing in at least some regard. Therefore, you should back away from classifying your divorce as being uncontested.
So, what kind of case could be an uncontested divorce?
If none of the above circumstances apply to you and your spouse, then you have a pretty good chance of your case being classified properly as an uncontested divorce. As you can see, simple divorces with no money at stake, no real property, and no children make for the most likely sort of divorce to be properly classified as uncontested. Otherwise, the subject matter in a divorce is too diverse and the stakes are too high for a case to be classified as uncontested.
The key to this entire discussion is to be sure that you and your spouse agree on every single issue in your divorce. From my vantage point, I think it is extremely unrealistic for you and your spouse to be aware of every single issue that could be relevant in your divorce case. This isn't to say that you and your spouse aren't intelligent people. Rather, as you can tell from today's blog posts many issues could be relevant to a divorce case. It is unlikely that you, as a person who is not an attorney, would know every issue that could be relevant in your divorce case. As a result, you are likely missing out on certain subjects by assuming that your divorce is uncontested. Even if you perform a great deal of research online there is still probably some subject matter that you are disregarding which can lead to problems in your divorce case.
On the other hand, even if you are not sure that you and your spouse agree on every subject in your divorce you may be able to classify your case appropriately as an uncontested divorce if you believe that your spouse is not going to participate in the case. This means that even when you attempt to serve him or her you believe that he or she is not going to file an answer or otherwise participate in the case. In addition to being classified as an uncontested divorce, this would otherwise be known as a default divorce because a default judgment would likely be the result of the case.
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 consultation 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.