Understanding Divorce in Texas
The divorce process in Texas can be short, or long and painful. There is no period of separation required in Texas, so a party may file for divorce at any time, regardless of whether or not the spouses are still living together. But once a divorce petition has been filed with the clerk, it must be on file for at least 60 days before the parties can get divorced. There are two types of divorce in Texas: uncontested divorces or contested divorces.Despite the differences enumerated in the descriptions below, having an experienced family law attorney on your side significantly simplifies the process and virtually eliminates the opportunity for error.
A party can obtain an uncontested divorces either by a default divorce or a truly uncontested divorce. In order to proceed with a default divorce, the party filing the divorce petition must have their spouse served with the original petition. The party that was served will have until 10:00 A.M. on the Monday following 20 days after service to file an answer. If that party does not file an answer, the moving party may move forward with a default divorce. However, if the moving party has their spouse sign a Waiver, then the only way to proceed with a default divorce is if that party fails to appear at the trial date. In both instances, the moving is still required to put on evidence to the Court as to the relief requested.
A truly uncontested divorce is when both spouses have an agreement as to everything. This means the parties agree as to a division of property and liabilities, and if children are involved, as to custody, visitation, child support, and health insurance. An uncontested divorce is the most simple divorce process in Texas. Both parties sign the Agreed Final Decree of Divorce. A Judge will more than likely approve this agreement as long as they find the terms and conditions are in the best interest of the child. If the parties do have an agreement as to everything, it may be possible for them to get divorced on the 61st day.
A contested divorce occurs when the parties do not have an agreement as to everything. They may have an agreement as to some issues, such as property division, but may not agree as to other issues, such as custody or child support. The only way to settle a contested divorce is through trial. Under Texas law, a party may be entitled to a bench trial (which occurs in front of the Judge) or a jury trial. However, only a Judge can decide how to divide property, which is based on a “just and right” division, but this is not necessarily a “50/50” split. It may takes months, or even years, to finalize a contested divorce. This can be an emotionally, physically, and financially draining process. Therefore, Courts will usually require parties to participate in an Alternative Dispute Resolution process.
Alternative Dispute Resolution
When parties cannot come to an agreement, sometimes an alternative dispute resolution process can help. Parties can either agree to participate in ADR, or a Court may order the parties to participate in ADR. If custody is in issue, more than likely a Court will require the parties to participate in ADR before a final trial.
In looking at ADR, parties may participate in Arbitration, Mediation, Collaborative Law, or an Informal Settlement Conference. Arbitration and Mediation each use a neutral third party that will hear evidence from both sides. However, in arbitration, the arbitrator actually renders a finding that is binding on the parties, whereas in mediation, the mediator does not render a finding but instead works with the parties to try and reach an agreement. An informal settlement conference does not use a neutral third party, but involves the parties meeting (and possibly their attorneys) to try and reach a settlement.
The divorce process in Texas can be rather confusing. Whether your divorce is uncontested or contested, the Law Office of Ashley J. Scott can help navigate you through the legal process. Call our office today at (713) 255-2097 to set up a consultation to discuss your options.