The Uncontested Divorce

Many times in my practice, I interview client's who tell me they have or want and "uncontested divorce." My usual response is, "That's great but what does your spouse want." The truth is there really is no such thing as an uncontested divorce. A divorce in Texas is by nature always contested. That is because no matter what you call it, a divorce is a law suit, in which one spouse is suing the other spouse for a divorce. By nature that puts the spouses on opposite teams. So what do we mean when we say "uncontested divorce?" Well the term is something that has been created by family law attorneys to describe a divorce where both parties are in agreement to getting a divorce, and, more importantly, they are in agreement as to how they will handle what happens in their divorce. I tell client's that if you want an uncontested divorce, it will require three things to happen. First, I will draft a petition for divorce that alleges you and your spouse will reach an agreement as to provisions governing the children, and that you and your spouse will reach an agreement as to the division and assets of your property and debts. Second, I will prepare a waiver of service for your spouse to sign, and she must sign it in front of a notary and return it to me. Third, I will prepare a divorce decree based on what you (the client) tell me you and your spouse have agreed to. Your spouse must sign that as well and when the time comes we will present it to the Judge for signature. I then tell my client's that if any one of the three things does not go as planned, then you are no longer and "uncontested divorce" but rather a contested divorce. That means if your spouse refuses to sign the waiver, I will have to have them served and you are now contested. If your spouse refuses to sign the divorce decree and I have to set it for a hearing, you are now contested. If your spouse hires an attorney who files a answer denying the allegations that you will be agreed on everything, you are now contested.

The good news is an uncontested divorce is cheaper, quicker and provides a means for both parties to exit the marriage in an amicable manner. The bad news is this rarely happens. I have found over the years that three things make it less likely for the uncontested divorce to work out. First, property. I don't mean the furniture, or electronics, I am talking about houses or land. The second is retirement accounts. The third and most common reason uncontested divorces don't work out is children. Anytime you have one of these things, the likelihood of your divorce staying uncontested goes down. Add two or more and the possibility of your divorce becoming contested doubles. Don't get me wrong, I have had many divorces with all three involved, where the parties where able to work every little detail out and the divorce never went contested, but this is rare.

Honestly, I wish every divorce could be uncontested, unfortunately, pride, anger and a variety of other things often get in the way. When client's tell me they want an uncontested divorce, I will usually encourage them to talk to their spouse, before filing for divorce. Make sure you and your spouse are truly on the same page. Make sure you agree as to what each person will take from the house, make sure you agree on who will get the house and how you will split the equity in the house. Talk about retirement accounts and how those will be divided. Maybe one person keeps the retirement and the other keeps the house free and clear. Most important, if you have children, make sure you agree on who the children will live with, what type of visitation each will have, who will pay child support and how much. Who will provide the health insurance for the children and where the children will go to school. When talking to your spouse about these things, leave your feelings behind. Don't start making snide comments or talking about whose to blame for the breakup. This will only lead to a break down in communication and lead to the more expensive, heart wrenching contested divorce. If you and your spouse can agree to all of the things mentioned above, then the likely hood of you having a successful "uncontested divorce" will increase dramatically.