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Contested vs. Uncontested Divorce in Houston
IS AN UNCONTESTED DIVORCE IN HOUSTON BETTER? WHAT’S CONTESTED VS. UNCONTESTED DIVORCE, ANYWAY? LEARN WHAT’S INVOLVED IN THE TWO TYPES OF DIVORCES HERE.
If you are contemplating divorce you are not alone. According to the Texas Health and Human Services, the state had 71,123 people divorce in 2015, which is equivalent to 2.6% of the population.
One of the first considerations is whether you will file for a contested vs. uncontested divorce. While uncontested is easier, the majority of divorces are contested. Specific criteria must be met to file for an uncontested divorce, and we are going to explain what the differences are so you can make an informed decision.
The Difference Between Contested vs. Uncontested Divorce
When both spouses agree to the divorce and agree on all aspects of the property division, that is an uncontested divorce. It is a very simple divorce process that is fairly quick and inexpensive.
If you and your spouse are unable to agree on one or more areas of the divorce, then you will need to file for a contested divorce.
Other considerations in filing for divorce in Texas is whether you are filing an at-fault divorce. Reasons for this type of filing include adultery or your spouse abandoning the marriage. If you are filing an uncontested or agreed upon divorce, you must file a no-fault divorce, listing your reason for the divorce as living apart or insupportability.
The reasons for granting a divorce in Texas and the procedures for filing a divorce are set forth in the Texas Family Code. Before filing, you will need to make sure you meet the state’s residency requirements.
In the State of Texas, the court will not accept a petition for divorce if you or your spouse has not been a resident of the state for a minimum of six months prior to filing for divorce. You must file the divorce in the county where you reside and you must live within that county for a minimum of three months before filing.
Texas has approximately 456 district courts, which is the court that handles divorce in Texas. If you are planning to file without an attorney, you will need to make sure you file in the proper venue or the court will dismiss your case and you will need to start over.
Uncontested or “Agreed” Divorce
Even if you and your spouse have agreed to the settlement of your belongings, to file for an uncontested divorce you must still meet specific criteria:
- You and your spouse must agree on the reason for the divorce
- You and your spouse both agree that the marriage needs to end
- Neither you nor your spouse has an active bankruptcy case
- You and your spouse have no minor children born during the marriage
- There is no property jointly owned by you and your spouse, nor do you have any retirement benefits to divide
- Neither you nor your spouse is requesting alimony
You do not qualify for an uncontested divorce in Texas if you and your spouse have minor children. You may be able to divorce under the alternative “agreed” divorce if the following elements are met:
- There are no court orders for support or custody of the minor children in place
- You and your spouse agree on the division of all marital property, and also agree on child custody and child support
The “agreed” divorce is an alternative for couples who have minor children with a final court order already in place on child support and child custody. In this situation, you will need to use the toolkit “Instructions and Forms for an Agreed Divorce with Children.
You can not use the toolkit if the existing court order does not meet the following criteria:
- The final order must include all children you and your spouse have together
- If the existing order is a temporary order or a protective order
- If you or your spouse want to change the order
Here are the steps for filing an uncontested or “agreed” divorce.
1. FILE COMPLAINT FOR DIVORCE
A divorce is a type of lawsuit and it is begun by preparing and filing a Complaint for Divorce. All terms regarding everything within the marriage must be in agreement between you and your spouse.
2. WAITING PERIOD
After filing the petition there is a minimum 60-day waiting period before the divorce can be final. To finalize the divorce the Plaintiff (person filing the complaint) must go before the Judge to provide testimony.
3. DIVORCE HEARING
This is a very quick process and includes answering simple questions such as the dates of the marriage, date of separation, your spouse’s full name, length of residency, whether or not the wife is pregnant, whether or not the wife wishes to restore her maiden name, how property is being divided and child maintenance.
4. Divorce Decree and Waiver of Service
To complete an uncontested divorce you must prepare a final decree and waiver of service. Your spouse must sign the final decree and waiver before a notary public after you file for divorce. If your spouse signs the waiver prior to when you file for divorce, the waiver is void.
The final decree details the property division and orders the divorce. If there are minor children then it must include all issues of child custody and support. You must prepare and submit additional forms for the children which include the wage order and medical support order.
Parenting Class and 30-Day Waiting Period
If you are divorcing in the 247th District Court for Harris County, the court requires you and your spouse to take a parenting class. If at the time of divorce your spouse has not taken the class, then the final decree must state that the spouse will not receive any visits with the minor children until such time as they have a certificate of attendance on file with the court verifying their completion of the course.
Texas law requires a 30-day waiting period following the entry of the final divorce decree during which time the divorce can be set aside.
When you and your spouse do not agree on one or more areas of the divorce, you need to file a contested divorce. This is a more detailed process, and if not using an attorney you will need to carefully adhere to the rules of the court. Here is what steps are required in a contested divorce.
1. Petition for Divorce
A Petition for Divorce, a/k/a Complaint for Divorce is filed with the court. The petition includes information required by the court regarding you, your spouse, and the marriage. It will also advise the court on any issues including property, spousal support, and the custody and support of any minor children.
2. Service of Process
The spouse that files the divorce must have complete service of process on the other spouse. This is normally done using a process server.
A process server in the state of Texas is a specially trained professional. They are required to complete a civil process service educational course and complete a background check to receive their certification. This guarantees they are familiar with meeting the court requirements for properly serving your spouse.
3. Filing the Answer
After receiving service of the petition, your spouse will have a specific number of days to file their answer. Often in contested divorces in addition to filing an answer, the spouse will also file a counter-petition. This presents the spouse’s position regarding the divorce and states what they are seeking in the divorce.
Discovery is a process in which the attorneys, or parties, exchange information in a formal process. This allows them to work on a settlement and prepare for trial. This can include information such as bank records, property values, appraisals, and criminal records.
5. Temporary Orders Hearing
This is a hearing where the judge will issue orders regarding the conduct of you and your spouse while the divorce is pending. This includes the handling of bank accounts, credit cards, temporary spousal support, temporary child support, with which parent the children will reside, and parenting time for the other spouse.
6. Final Divorce Hearing
This is a hearing, or trial, to finalize the divorce. The judge will make a determination on any items which the parties have not agreed to. The final divorce decree will also be signed, which contains the final divorce settlement.
An experienced divorce lawyer will be familiar with the divorce process and the laws that you must follow through each step of the process. They will be comfortable obtaining discovery, preparation of the final divorce decree, and presenting the findings of fact in court.
Meeting With an Attorney
There are legal requirements that must be met with both contested and non-contested forms of divorce. It is advisable to meet with an attorney to discuss your options prior to filing for divorce.
Your divorce attorney will gather all relevant information and prepare a petition that meets the court requirements. The attorney will handle arranging service of process on your spouse. If your spouse files a counter-petition, your attorney will file an answer with the court within the required time frame.
Familiar with every step of the divorce process, an attorney will make the process flow smoothly. The law office of Scott M. Brown & Associates handles all types of divorce cases. The majority of their practice is clients with high-conflict divorces.
Whether you are looking at a simple “agreed” divorce or anticipating a battle with your spouse, it is advisable to schedule a consultation to find out what your options are.
Schedule a Consultation
Headquartered in Angleton, Scott M. Brown & Associates serves clients in the Houston area. They have a commitment to getting you the best divorce settlement possible.
If you are unsure whether to file a contested vs. uncontested divorce or if you know which you need but are unsure of the legal process, contact us to schedule a consultation. We look forward to meeting with you to discuss your case.