Contested or Uncontested Divorce
What is an “uncontested” divorce?
Divorce in Texas involves two basic issues:
Division of marital property (including debt); and
Custody of minor children.
If a husband and wife have decided to divorce and are able to agree on what should happen regarding property and children, then we call this an uncontested or agreed divorce.
In reality, almost all divorces will have some level of disagreement along the way, but our goal is to help our clients work through the process to reach an acceptable outcome without having to rely on a judge or jury to make decisions for us. We don’t mind trying a case to a judge or jury if we can’t get an agreement, but there is always some risk and uncertainty involved when we do.
I think my spouse and I will be able to agree on the terms of our divorce. Do we each need an attorney?
First and foremost, this firm only represents one party to a suit. We will never attempt to represent both parties no matter how agreeable they might be. If any attorney or firm says they can represent both you and your spouse in a divorce, we recommend that you contact the State Bar of Texas at (800) 932-1900 or by visiting TexasBar.com. It is impossible for one attorney or firm to represent you and your spouse without having an unavoidable conflict of interest.
In the event that we are the only law firm involved in the divorce, we will not give legal advice to the unrepresented spouse, and we will encourage independent legal counsel.
My spouse has hired a lawyer. We agree on what should happen, so what should I do?
If your spouse is the one who has retained an attorney to draft and file the divorce documents that memorialize your agreement, we will be glad to engage in a limited representation to help you protect your interests. At a minimum, you should seek legal assistance with filing an answer or waiving service and then with reviewing the proposed final decree before you sign it.
Filing an Answer
If you have been served with a petition for divorce, you must file an answer (make an appearance) to prevent a default judgment from being entered against you. A default judgment (where you fail to file an answer within the prescribed time period) means that your spouse can get divorced according to his or her terms and without your input or objection.
Signing a Waiver
When we are performing uncontested divorces, we typically expect that the other party to sign a waiver of service. You may have been presented with a waiver from your spouse’s attorney.
Waiving service means that you acknowledge receiving a filed-marked copy of the divorce petition and that you do not want to be served by a process server, sheriff, or constable with the same document. The waiver will probably also state that you are entering an appearance in the matter and that you want to be notified of any future court proceedings. It may also state that you are asking that the Court not enter any orders without your signature or without you appearing.
CAUTION: Some legal software provides a waiver that says, “I agree that this case may be taken up and considered by the Court without further notice to me.” Never sign such a waiver unless you are willing to have your divorce granted without your agreement. We do not use such a waiver unless the unrepresented spouse specifically says that he or she does not want to have anything to do with the divorce, and we typically add language to the waiver that specifically explains the risk associated with signing it (i.e., that marital property and child custody issues can be decided solely on the wishes of the other party).
Signing the Decree
If your spouse has hired a lawyer and presented you with a proposed final decree, we will be happy to review the document with you and make sure it accurately memorializes what you and your spouse have agreed upon. It’s much easier and less expensive to get the decree right the first time than to try to correct a divorce decree after it has been approved by the court in a final hearing.
What are the benefits of an uncontested or agreed divorce?
Uncontested divorces are typically less expensive and the results are certain. Further, they allow for more deviation from the standard possession order than the Court might otherwise allow.
I want to meet with an attorney to discuss my case. What do I need to do?
Our goal with every client is the same - we want to collaborate and communicate throughout the case so that each client is informed and comfortable with the actions we are taking on their behalf. To begin this process, we offer an initial consultation where we will talk about your situation, your goals, and our approach. If the initial consultation goes well, we will put together a contract and begin the process of gathering information.