What is an Uncontested Divorce in Texas?

Is there really such a thing as an uncontested divorce in Texas? When people see signs on the side of the road advertising low rates for an uncontested divorce, it is easy to get confused. There is a misconception that the word "uncontested" refers to whether the couple mutually agrees to be divorced and dissolve the marriage. This misconception often comes from television and movies where characters are focused on whether one will give the other a divorce. In dramatic scenes, one reluctant party finally gives in and signs off on the divorce. While entertaining, this is not an example of an uncontested divorce.

Rather, an uncontested divorce is a divorce where the couple has resolved all major issues including child custody, visitation, parenting time and property division. This means much more than husband and wife agreeing to split everything equally and handle custody and visitation on their own. There are several issues that should be addressed, and the parties should be advised of their legal rights under Texas law and the Family Code before making any agreements.

An Agreeing to Divorce is Not the Same as Uncontested Divorce

Texas, like many states, is a no-fault divorce state, where all a husband or wife needs to allege is insupportability, stated in the Texas Family Code as follows: "On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation or reconciliation (Texas Family Code, 6-A)."

If one party alleges the marriage should be dissolved, they allege the grounds for dissolution, such as insupportability, in their petition. If that party wants to be divorced, the court will make a finding that the marriage is dissolved. Whether the other party agrees and wants the divorce is not a question of whether the divorce is an uncontested divorce because uncontested refers to all the legal rights and issues involved in dissolving a marriage where children, income, assets, and property are involved.

What Issues Must Be Resolved to Have an Uncontested Divorce?

Child custody and visitation are significant issues in divorce. What may sound good in theory, is more difficult to implement in real life. For example, some parents want to share equal parenting time with their sons and daughters and suggest they will work together without a fixed schedule. Everything may run smoothly, but anything can change. Having a well thought out parenting plan helps answer all the "what if" questions. Child support, medical expenses, and insurance are issues which must be addressed and resolved before you can proceed with an uncontested divorce.

Financial and property issues in a divorce can be the source of conflict. Couples who approach divorce and agree to split everything down the middle may change their mind. There are so many issues involving money and property that people don’t think about until they drill down into the details. It is important to learn your legal rights and duties regarding money and property. Discovery is the process in a divorce, where the parties exchange documents and information about finances, assets, and liabilities. So even if the parties still agree to split everything 50/50, they should be aware of their legal rights and options before proceeding in an uncontested divorce.

Using Mediation to Resolve Issues for an Uncontested Divorce

A Mediated Settlement Agreement is a document identifying the parties in a divorce and their respective award of the divided marital estate. When the parties agree to mediation, they can use the formal dispute resolution process to identify, resolve and confirm how parenting and property will be addressed in the divorce. The result of the mediation process should be a written Mediated Settlement Agreement. It is important to use an experienced divorce lawyer who knows the requirements necessary so that the Mediated Settlement Agreement is enforceable and the party seeking divorce is entitled to judgment.

A Waiver of Service for an Uncontested Divorce

In a typical divorce, the party filing for divorce has the other party served with divorce petition and the affidavit of service is part of the divorce court record. If both the parties who want an uncontested divorce, they may waive the formal requirement of being served. The process of serving someone with divorce papers is all about the court’s right to establish personal jurisdiction over the party listed as a respondent in the divorce petition. Judges hearing petitions to approve uncontested divorces require a waiver of service be filed with the clerk of court before the uncontested divorce may be approved.

A Signed Final Decree of Divorce for an Uncontested Divorce

A final decree of divorce is a formal document containing a list of recitals that identify the requirements for the process of a divorce have been satisfied. The final decree for an uncontested divorce should properly identify the rights and duties of both parties and what will happen with children and property. The final decree indicates that the court has jurisdiction over the parties and the divorce, and that the waiver of service has been filed.

Getting an uncontested divorce in Texas is a relatively straightforward process when both parties agree on the division of property and parenting rights and duties. Always hire an experienced divorce attorney to prepare, file and present your divorce to the court.