Monday, April 18, 2016

Uncontested Divorce... or Not?


There is a lot of confusion about the term "uncontested divorce".

"Uncontested divorce" is sometimes used to mean "a divorce that has an agreement at the end of it, rather than a trial".  In that sense, it is used to mean a "cooperative divorce". However, just because there isn't a trial, that does not mean that the divorce is uncontested.

"Uncontested divorce" can also be used by some people to mean "no fault divorce". In this type of divorce, the parties do not assign fault to each other in the court paperwork. They simply say that they have "irreconcilable differences". But a divorce can be "no fault" and still  not be "uncontested" if the parties don't agree in advance on just one thing. (amount of support, who gets the car, visitation times, and so on.)

The true and completely uncontested divorce is one in which both parties AGREE on ALL the terms of the divorce and have already reached their own agreement about the split of property and debts as well as child support and visitation.   Sometimes the parties will even come to the initial legal consultation appointment together.    Although Texas law does not allow both parties to be represented by only one attorney, the true uncontested divorce features cooperation, information sharing, and an agreement that the spouses have reached on their own.

In a true uncontested divorce, the spouse who is the Respondent (the one who is not filing the initial petition) does not need to be served because s/he is happy to sign a waiver of service. If the respondent spouse later changes his or her mind and decides not to sign the waiver then the divorce is not uncontested.  An attorney cannot force a reluctant spouse to sign a waiver!

A family law attorney can help you with any of these situations.   If you have a "true uncontested divorce", you will want to write down the details of the agreement between you and your spouse and bring it to you consultation appointment with the attorney.    Having a divorce that is well-thought out in advance and truly uncontested can help save legal fees and emotional wear and tear on the family. Your family law attorney can prepare and file the paperwork and guide you through the process.


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