In Texas family law, few terms come up as often as contested versus uncontested divorces. An uncontested divorce generally means both spouses agree on all major issues, while a contested divorce involves disputes that require court intervention. Understanding the difference between the two is crucial because it directly impacts the time, cost, and stress involved in your case.
At the Law Office of Bryan Fagan, we aim to break down these legal concepts in a clear and practical way—helping you see how they apply to your own situation without overwhelming you. Divorce is never easy, and in Texas, even the decision of who files first can carry certain disadvantages, making it all the more important to understand the dynamics of contested versus uncontested divorces.
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 disagreements related to your case that are 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.
Understanding no-fault divorce in Texas and when grounds matter
Texas law treats divorce as a no-fault matter. In a no-fault state, you do not need to allege a specific ground for divorce to obtain one in the Lone Star State. You only need to state that irreconcilable differences or conflicts of personality exist between you and your spouse. If you do have grounds for divorce, you should specify them in the original petition.
You may wonder why specifying grounds helps if Texas does not require them for divorce. Why put in extra effort if you can still divorce without it? Specifying grounds can help you win a disproportionate share of your community property if the court finds that the ground materially affected the marriage and led to the filing. Specifying grounds related to your children can also influence how the court decides custody and conservatorship matters.
In a contested divorce, you will typically file your paperwork and then pay to have a process server or constable serve your spouse personally. However, it may be the case that 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?
Serving divorce papers through substitute service in Texas
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 that 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 without 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.
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 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 that your court orders will be based on. Most divorce cases in Texas settle in mediation rather than go to a trial.
Why temporary order hearings matter in a Texas divorce
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 divorce to 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 represents the most meaningful step in a contested divorce case. During a trial, the parties present evidence to a judge regarding all relevant matters in the case. For instance, if you have children, the judge hears and decides custody and conservatorship issues. The judge acts as the final arbiter of who serves as the primary conservator of your children, which parent pays child support, what visitation schedule applies, and how much child support the paying parent provides. Even if you do not have children, the trial still plays a critical role. The trial addresses matters such as the division of your community property estate.
Preparing for a contested divorce with experienced legal help
A contested divorce requires you to stay prepared throughout the case. The best way to prepare for a contested divorce is to work with an experienced attorney at the Law Office of Bryan Fagan. Our attorneys provide free consultations six days a week, where we meet with you and review your specific situation. We represent clients daily in the courtrooms of Southeast Texas and stand ready 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 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 situation means that if the divorce catches you by surprise, then your divorce will not qualify as uncontested. Spouses who pursue an uncontested divorce usually work together in advance of filing to fine-tune their settlement agreement so they can complete the process without unnecessary delays.
Why is full agreement required for an uncontested divorce
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.
How a waiver of service works in an uncontested divorce
Sometimes an uncontested divorce begins when a party files a waiver of service instead of an answer. A waiver of service means a party understands the right to be served with divorce papers by a process server but chooses to give up that right. Filing a waiver of service does not mean the party gives up the right to receive notice of matters connected to the divorce. Filing a waiver shows that the parties do not view the divorce as conflict-filled. A party can file the waiver with the court, and then you and your spouse can move forward with negotiations on any matter relevant to your case.
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
Say you’re divorcing a spouse who runs a small business and has always managed the family finances. That may have worked during marriage, but in divorce it leaves you vulnerable. Choosing an uncontested divorce in this situation could mean giving up important rights and benefits you might otherwise protect.
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
When it comes to contested versus uncontested divorces in Texas, the two paths may share certain elements, but the overall process is vastly different from start to finish. Choosing the right path requires confidence that the decision is best for your family. In many situations, circumstances dictate whether your divorce will be contested, leaving little room for choice. The reality is that most people will not qualify for an uncontested divorce, but for those who do, it is worth carefully weighing the benefits and risks. You should never agree to an uncontested divorce simply to avoid conflict or sidestep potential disputes. Sometimes, facing uncomfortable arguments during the process is far better than living with long-term regret over agreeing to unfavorable terms.
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.
- Making Sense of Uncontested Divorce in Texas: The Timeline and What It Means for You
- Uncontested Divorce Forms in Texas: How to File Them the Right Way
- Filing an Uncontested Divorce in Texas: Essential Steps and Considerations
- The Beginner’s Guide to the Cost of an Uncontested Divorce in Texa
- Understanding How Long an Uncontested Divorce Takes in Texas Through Real Cases
- How Long Does an Uncontested Divorce Take in Texas? What to Consider for Your Situation
- Requirements for an Uncontested Divorce in Texas – Simplified Steps
- Uncontested Divorce in Texas: When Does Filing Make Sense?
- Step-by-Step Guide to Filing an Uncontested Divorce in Texas
- How to Handle Uncontested Divorce Paperwork in Texas the Right Way
