Agreed or Contested- What to Expect When Filing for Divorce
Nobody ever got married expecting to later file for divorce. However, according to the American Psychological Association, US Census Bureau, approximately 50% of married couples in the United States will divorce.
Divorce is a complex process full of emotions which makes it all the more critical that you retain lawyers with the experience necessary to get you through the process with as little pain as possible.
Below, our legal team at Harris Cook provides explains the divorce process in general in hope of providing some clarity to those wondering just how the divorce process works in Texas, including the process for both agreed (uncontested) divorces and contested divorces. Whether that means we proceed with an agreed divorce or with a contested divorce, our goal at Harris Cook is to always reach a reasonable and fair resolution in your divorce.
Step 1 of the divorce process: determine where each spouse stands regarding the divorce. Why? Because this determination will guide your attorney’s choice on which strategy is best for your specific situation.
The Agreed Divorce
Your attorney will recommend you begin the divorce process with an agreed divorce being the objective if, for example, you and your spouse already discussed and agreed upon details of the divorce, including custody of your children, who pays child support, how to divide your property and how to allocate your debts.
If your case is considered amicable, your attorney will draft a petition, which is the legal document that begins the divorce process. The petition is filed with the court clerk and will advise the judge presiding over your case that you and your spouse are going to work towards presenting the court agreement on all issues. After the petition is filed, we will work with you to draft the Agreed Final Decree of Divorce pursuant to the terms you and your spouse agree upon. This is the document which specifically sets out the agreements made regarding children, property and debt, and is the document we will ultimately ask the judge to sign upon the granting of your divorce.
While an amicable divorce done by agreement may be your initial goal, it can only be accomplished if both your spouse shares your goal. Further, though your case may start out with the goal of reaching an agreement, circumstances often change and the agreed divorce you initially thought would happen cannot be accomplished.
The Contested Divorce
Although an agreed divorce is ideal, it is not always possible. Your attorney will implement a strategy for a contested divorce if, for example, you advise there has been a history of family violence which necessitates things like restraining orders or protective orders, if told your spouse you want a divorce and he or she handled the news poorly or if you are simply not of the belief that your spouse will agree to a fair resolution of the issue particular to your case.
In a contested divorce, the attorney will file a petition with the court clerk but unlike the petition in the agreed divorce scenario, this petition will often include requests for immediate relief such as child support and child custody, use of property, spousal support, requests for restraining orders and requests for injunctions. Once filed, we will have your spouse served with divorce papers including a notice that a hearing on your request for temporary orders has been scheduled for a specific date and time. After the temporary order hearing, the judge will make rulings and we will then draft Temporary Orders reflecting the judge’s rulings. These Temporary Orders will govern you and your spouse while the divorce case is pending.
We will then move forward with the divorce process. This could include sending written discovery (i.e., requests for information and documents) to your spouse so we can learn as much as possible about the property and debts at issue. Most courts will require parties to a divorce to attend mediation where a licensed attorney works between you, your lawyer, your spouse and their lawyer in hopes of settling the case. Though mediation is often effective, it is not always effective. Our lawyers are experienced trial attorneys and in such a circumstance will be prepared to present your case to the judge, and in some cases, to a jury.
There are multiple factors which determine the duration of your divorce process, but ultimately, it depends on whether your situation is considered amicable or contested because the divorce process is about reaching agreements. Other factors include ownership of assets, debts, and whether you have children.
Agreed Divorce Timeline
If your divorce is expected to be agreed, you and your spouse most likely already smoothed out the biggest issues in a divorce, which include property division, asset division, child custody, and child support. Your attorney will first explore the small details about these issues, propose the details to your spouse or spouse’s attorney, and then proceed with preparing the Agreed Final Decree of Divorce.
However, as Texas law requires a 60-day waiting period after your attorney files the divorce petition, even if all the documents are prepared and the agreements have been made, the divorce cannot be finalized until the 61st day after your petition was filed. Once the 60 days pass, your attorney will submit to the court an Agreed Final Decree of Divorce. When the judge signs the decree, your divorce is finalized.
Contested Divorce Timeline
Unlike the agreed divorce timeline, if your situation is considered contested it is because you and your spouse have not reached an agreement, which means your case will likely require exchanging written discovery (i.e., requests for information and documents), mediation and possibly, a trial. Depending on the court your case is assigned to, it can take over a year to get your case to trial. Often, cases which were originally contested settle in this lull between the temporary order hearing and trial, whether informally between your attorney, you, your spouse’s attorney, and your spouse, or formally at mediation. If settlement fails, your case will have to be tried and either a judge, or for some issues a jury, will make rulings on all of the issues you and your spouse were unable to agree upon.
The divorce process can be very intimidating. The legal team at Harris Cook is well-able to guide you and protect you as you go through this difficult time whether your divorce is agreed or contested.