DIVORCE - UNCONTESTED VS. CONTESTED
While we frequently hear the term “uncontested” - there is no distinction in Texas law between contested cases and cases that are resolved through an agreement. All cases, regardless of how contested or amicable, are resolved through the same process of filing a Petition and then either requesting that the Court approve an agreement reached by the parties, or asking the Court to make a decision for the parties when an agreement cannot be reached.
In order to start the divorce process, one party must file a Petition for Divorce with the court and give the other party notice that this has been done. In an uncontested divorce, the easiest way to do this is for the non-filing party to sign a Waiver of Service. This avoids the cost and embarrassment of having them served by a Process Server.
Generally, you file for divorce in the county in which you currently reside. While there are certain exceptions, you cannot file for divorce in Texas unless you have been living in the state for 6 months and residing in the county in which you intend to file for at least 90 days.
From there, the parties can work together to reach an agreement dividing their property, debts and securing agreements regarding their children, if they have any. Even if the parties reach an agreement, a divorce cannot be finalized – barring certain unusual circumstances – until the 61st day after the Petition for Divorce has been filed. This is commonly referred to as the "waiting period" as is required as a public policy to ensure parties are not getting divorced without a chance to "cool off" and consider the weight of the decision prior to finalizing their case.
Even when parties are amicable or potentially have already come up with an agreement, it is essential to seek competent counsel to help with the drafting and finalization of the legal paperwork. Once a Final Decree has been entered it can be very costly and sometimes impossible to fix problems that arise later on. When the parties do not believe they will be able to agree on how they will divide their property, or about the custody and support of their children, it can be imperative in those cases especially to take a proactive and aggressive approach from the start.
Often at the beginning of the case, parties have immediate issues that need to be dealt with such as who is going to remain in the home, who is going to pay what bills, or who the children are going to primarily reside with. These are all issues that can be dealt with through a Temporary Orders Hearing. This is a hearing, which typically occurs within the first 14 to 30 days of a case being filed. A Temporary Orders Hearing can be very contentious and can set the entire framework for how your case will unfold as these orders will often be in place until an agreement is reached or a Final Trial occurs, which can be 9 months to a year (sometimes much longer due to the Court's pandemic backlog) after filing. It is imperative to retain a proactive and aggressive lawyer as early on in your case as possible to fight for you and obtain the most favorable orders regarding your children and property.
While appearing in court for your divorce can be extremely stressful and costly, at Dally & Webb, PLLC, we realize that sometimes a hearing or trial is inevitable. We will do our best to guide you through this difficult process and be an effective and zealous advocate for you and your family both in and out of the courtroom.
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