What Is The Difference Between A Contested And An Uncontested Divorce In Texas?
A divorce is the legal dissolution of the marriage relationship. Each divorce is unique, involving different facts and circumstances. Divorce can be simple or complex, short or lengthy, and everything in between. A divorce involving children requires the sorting out of custody, possession plans, child support, health insurance, and more. Those things can be hotly contested, costly, and take longer to resolve. Some cases involve property and property division. Generally, the longer the marriage, the more community property that’s acquired and must be divided. This can include houses, cars, bank and investment accounts, retirement accounts, and business assets.
The divorce process, in Texas, begins with the filing of a formal petition for divorce. Jurisdiction in a divorce case is determined by residency. As long as at least one party has lived in Texas for at least six months, they meet the residency requirements. They also need to live in the county in which they file for at least 90 days. A copy of the petition, together with a citation, has to be served on the other party and the return of service must be filed in the court. That satisfies the due process element. The party being served has a certain amount of time to answer the lawsuit with or without the aid of an attorney. A party without an attorney is called pro se. The parties will want to assess their finances and conduct inventories of the community estate.
They’ll want to sort out living arrangements and who pays for what. Other concerns, of course, are children’s visitation, child support, and health insurance. Depending on the county in which the divorce petition is filed, there might be automatic standing orders, in which case nothing more needs to be filed. If no standing orders exist, a request for a temporary restraining order needs to be attached to the petition. This makes sure the parties are required to refrain from taking any action that may compromise or affect the marital estate, the children, and the property. For example, parties can’t change the locks, deplete the bank accounts, or take the children from the jurisdiction.
A contested divorce is a typical divorce, where the spouses disagree on any aspect of the divorce. It’s the most common type of divorce involving lawyers. Common areas of disagreement are custody, child support, and property division. The parties can come to an agreement through the help of their attorneys, through mediation, or by having a trial and presenting the case to a judge to make a final decision. A contested divorce going to trial will involve exchanging discovery, hearings, and other typical aspects of litigation.
An uncontested divorce is when both spouses agree on every single aspect of the divorce, including custody, possession, child support, and property division. Usually, one party will retain an attorney to file the petition and draft a final divorce decree. The other spouse has the option of hiring an attorney. If they do, then it’s really not an uncontested divorce. The other spouse has the option of being served personally or filing what’s called a waiver of service, which dispenses with the need to hire a process server. If at any point during the divorce, one spouse disagrees on any aspect of the divorce, then the divorce is no longer considered contested.
Is There Any Benefit To Filing For Divorce Before Your Spouse In Texas?
If you are first to file a petition for divorce, you are labeled petitioner. The spouse answering the divorce is labeled respondent. Legally speaking, there’s no advantage to filing first. It’s not a race to the courthouse, like you see in other areas of the law. As long as due process is satisfied, each party has the ability to be heard, present and cross-examine witnesses, and introduce evidence. In terms of strategy, some may argue that an advantage exists by filing first, in a sense. A petitioner who requests relief in a hearing can present their case first.
Additionally, the person filing first can request a temporary restraining order or obtain the advantage of the standing orders, depending on which county they’re in. If obtaining relief right away is a priority, then filing first might be advantageous. The only conceivable disadvantage to filing first is the cost. You’re then the one who bears the costs of the filing fee.
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