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.

But, I don't want a divorce.

I have had numerous occasions where someone came to me because their spouse has filed for divorce and my client, said, "but, I don't want a divorce." Often times one of the spouses will get to that point where they no longer want to be married. The other spouse, however, is not yet there, and still wants to try to make the relationship work. I have had many client's ask if they can oppose the divorce and make the other person stay married to them. The old axiom, "It takes TWO to make a marriage work" is truer than ever when it comes to divorce. In Texas, if one of the parties wants the divorce, the Court is going to give them a divorce. In 1933 New Mexico became the first state to pass the "no fault" grounds for divorce. Shortly thereafter, every state passed similar laws. In Texas their are seven different grounds for divorce. The most common is the grounds of insupportability. Basically, this means that a person files for divorce and says, "my marriage has become insupportable due to a discord or conflict of personalities that destroys the legitimate ends of our marriage relationship and there is no reasonable expectation of reconciliation." In other words, "I don't get along with my spouse any more and I don't want to stay married to them, and there is no way we can work this out." When I explain this to a client that doesn't want to get divorced, they often tell me, "thats not true, we can work this out if he or she will just try." And there in lies the problem. If the other person doesn't want to try, then its not going to work no matter how bad my client wants it to.

The Court only needs one person to say, "no, I am not going to try, it just won't work," and thats all it takes for the Judge to grant the divorce. Remember when I said it takes TWO. Well it does, and no matter how bad ONE wants to make the marriage go on, it won't, and the divorce is going to happen. Fortunately, there are many support groups out there to help the person that is struggling with the fact that their spouse is divorcing him or her. I always incourage my client who is facing a divorce he or she doesn't want, to seek counseling with one of these groups. Most are offered through various churches and you don't have to be a member of the church to go. In these groups they meet other people who are also going through a divorce they don't want. Many of my client's have been better able to cope with their unwanted divorce by attending these groups.

So, if you are one of these persons whose spouse is divorceing you but you don't want to get divorced, first get good legal representation. I can't tell you how many times I have seen someone who didn't want to get a divorce, give up everything because they were too emotional to think clearly when it came to devidinng assets or decideing what to do with the children. That is why you hire an attorney. The attorney is not there to help you with the emotional side of the divorce, he is there to help you with the decisions you are not emotionally able to make. Second, get envolved in a grood counseling group. They are there to help you with the emotional aspect of a divorce, especially when you don't want to get a divorce.

"I'm a family law attorney."

I can't tell you how many times I have been at a social function, and someone would ask me, "What do you do?" Of course I would tell them, "I am a family law attorney" and then I would get that blank stare or, I would get, "Oh, does that mean you do wills?" So I decided to try to educate the non lawyers out there on exactly what a "Family Law Attorney" does. The area of family law comprises multiple areas such as divorce, child custody, visitation, child support, modifications of child custody orders, adoptions, grand parent rights, paternity, protective orders, prenuptial agreements, and spousal support, just to name a few. When you try to explain this to someone it usually sparks the response, "Oh, your a divorce attorney" to which I usually respond, yes. And while it is true, that every family law attorney is in essence a divorce attorney, it is important to remember that the area of family law incorporates much more than just divorce. Currently the Texas Family Code is comprised of five titles and 266 chapters. Provisions dealing with divorce make up only the first 9 chapters. That leaves 257 chapters dealing with other family law matters. So when someone says, "So, your a divorce attorney" it really leaves a lot out of what the family law attorney does.

Hopefully, this new blog will help shed some light on the area of family law. In future posts I will try to discuss various issues, not only involving divorce, but all areas of family law. Maybe I can give you, the reader, some quality information on issues involving you or someone you know. Check back regularly and maybe, just maybe you can surprise someone with your knowledge of family law at your next social event when someone says, "I'm a family law attorney."