The following are questions that we receive on a frequent basis regarding uncontested divorce. Again, this information is provided as general information and should not be relied on as a substitute for the legal advice of an attorney.
Divorce in Texas involves two basic issues:
- Division of marital property (including debt); and
- Custody of children.
If a husband and wife have decided to divorce and are able to agree on what should happen regarding property and children, then an uncontested divorce is possible.
An “uncontested” divorce is just another way of saying an agreed divorce or a divorce by agreement. It is not a technical term and does not have a special legal distinction from any other divorce.
First and foremost, this firm only represents one party to a suit. We will never attempt to represent both parties no matter how agreeable they might be. If any attorney or firm says that they can represent both you and your spouse in a divorce, we recommend that you contact the State Bar of Texas at (800) 932-1900 or by visiting TexasBar.com. It is impossible for one attorney or firm to represent you and your spouse without having an unavoidable conflict of interest.
In the event that we are the only law firm involved in the divorce, we will not give legal advice to the unrepresented spouse, and we will encourage him or her to seek independent legal advice during each contact.
We have performed divorces in which we were the only firm involved in the matter and in which the parties were able to agree on the terms of the divorce. During those instances, we have recommended that, at a minimum, the unrepresented spouse seek legal advice from another attorney to review our proposed decree before he or she signs it.
If your spouse is the one who has retained an attorney to draft and file the divorce documents that memorialize your agreement, we will be glad to engage in a limited representation to help you protect your interests. At a minimum, you should seek legal assistance with filing an answer or waiving service, and then with reviewing the proposed final decree before you sign it.
Filing an Answer
If you have been served with a petition for divorce, you must file an answer (make an appearance) to prevent a default judgment from being entered against you. A default judgment (where you fail to file an answer within the prescribed time period) will mean that your spouse can get divorced according to his or her terms and without your input or objection.
Signing a Waiver
When we are performing uncontested divorces, we typically expect that the other spouse will sign a waiver of service. You may have been presented with a waiver from your spouse’s attorney.
Waiving service means that you acknowledge receiving a filed-marked copy of the divorce petition and that you do not want to be served by a process server, sheriff, or constable with the same document.
The waiver will probably also state that you are entering an appearance in the matter and that you want to be notified of any future court proceedings. It may also state that you are asking that the Court not enter any orders without your signature or without you appearing.
CAUTION: Some legal software provides a waiver that says, “I agree that this case may be taken up and considered by the Court without further notice to me.” Never sign such a waiver unless you are willing to have your divorce granted without your agreement.
Our office does not use such a waiver unless the unrepresented spouse specifically says that he or she does not want to have anything to do with the divorce, and we typically add language to the waiver that specifically explains the risk associated with signing it (i.e., that marital property and child custody issues can be decided solely on the wishes of our client).
Signing the Decree
We draft final decrees all the time, and we certainly don’t mind reviewing a decree that your spouse’s attorney has presented to you for signature. We will be glad to help you understand what it means and how it affects your children and property.
It is far easier and less expensive to correct problems before a final decree is entered than after.
Uncontested divorces are typically less expensive and the results are certain. Further, they allow for more deviation from the standard possession order than the Court might allow. See Standard Possession Order below for more information.
Our fees are based on the time required for your case and the difficulty of the matter. When it comes to matters involving the family, our office almost always performs legal services based on an hourly rate. Because agreed divorces typically avoid most hearings and discovery, we will not have to spend as much time on your case with these steps and you will be billed less as a result.
For a better idea of the time involved in a contested divorce, please see our information under Divorce.
The other benefit to agreeing to the terms of your divorce is that you won’t be surprised by the verdict of a judge or jury. For every divorce that we try to a judge or jury, we always make sure that our client knows that anything can happen. There are no guarantees when trying a case.
Agreement For Child Custody and Support
Section 153.007 of the Texas Family Code states in part:
(a) To promote the amicable settlement of disputes between the parties to a suit, the parties may enter into a written agreed parenting plan containing provisions for conservatorship and possession of the child and for modification of the parenting plan, including variations from the standard possession order.
(b) If the court finds that the agreed parenting plan is in the child’s best interest, the court shall render an order in accordance with the parenting plan.
This means that in an uncontested divorce, the parents have quite a bit more freedom to create a plan for raising and supporting the children, so long as the court is persuaded that it is in the children’s best interest.
The standard possession order is an order found in the Texas Family Code in Sections 153.311 through 153.377, and it establishes the guidelines for when each parent will have the children, including special rules for vacation time. In the standard possession order, one parent is designated as the managing conservator (the one who gets to designate the residence of the children) and the other parent is designated as the possessory conservator (the one who gets weekend visitation).
The standard possession order also establishes the rights and duties of each parent concerning many issues, including moral and religious training, medical care, child support, and discipline.
It has been our experience that most judges prefer to order child custody along the guidelines of the standard possession order contained in the Family Code. As such, one parent will typically be given the right to determine the residence of the children and the other parent will be given weekend visitation and a child support obligation according to the guidelines.
It is our opinion that the law regarding standard possession and access tends to create conflicts between parents because it makes a winner and loser, so to speak. We think that it is in a child’s best interest to have parents who agree and work together as parents, even if they have decided that they do not want to be married to each other. It is also our experience that conflicts regarding possession and access do not foster an attitude of agreement between divorced parents.
In a typical divorce, even one that is uncontested, we will perform the following basic steps:
STEP 1 – CONFLICT CHECK
2-3 minutes (Typically by phone)
With all potential client calls, we will first check for conflicts that might prevent us from engaging in the representation. If you call, expect to answer some basic questions (what is your name, the name of your spouse, etc.) before discussing any part of your case. Please refrain from telling us anything about your case before we have determined whether any conflicts might exist.
Please see our Confidentiality Statement for more information.
STEP 2 – INITIAL INTERVIEW
5-15 minutes (Typically by phone)
This is where you will tell us what’s going on and we will ask some questions to try and determine whether or not this is a case that we can take. Some matters will require more time than we have available, and we do not “squeeze clients in” when we cannot fully devote ourselves to the representation.
Before we have this interview, we may ask that you complete our Client Information Sheet.
STEP 3 – CONTRACT AND FEES
If we can help and you want us to represent you, we will create a contract and discuss it with you in detail. This discussion will include our fees and how we will bill you for our time and expenses.
We will not charge you for the time we spend discussing the contract, so please feel free to ask as many questions about the contract as you want. It is very important that you understand our agreement before we engage in the representation.
STEP 4 – DETAILED INTERVIEW
We will gather information to prepare for your representation and to understand your current situation. Please review our Client Questionnaire and think about what your answers would be to each question or prompt. You may not know the answers to all of the questions right now, and that is okay.
STEP 5 – FILE SUIT OR FILE AN ANSWER
After we understand your situation, we will prepare and file a petition for divorce if one has not already been filed by your spouse. If one has already been filed, we will prepare and file an answer.
STEP 6 – SEEK WAIVER OF SERVICE FROM YOUR SPOUSE
When we are performing uncontested divorces, we typically expect that the other spouse will waive service. Waiving service means that the other spouse will sign a waiver saying that he or she has received a filed-marked copy of our divorce petition and that he or she does not want to be served by a process server, sheriff, or constable with the same document.
The waiver will also state that your spouse enters an appearance in the matter (we do not default spouses in uncontested divorces) and that your spouse wants to be notified of any court proceedings. It will further state that your spouse asks that the Court not enter any orders without his or her signature or without a hearing.
CAUTION: Some legal software provides a waiver form that says, “I agree that this case may be taken up and considered by the Court without further notice to me.” Never sign such a waiver unless you are willing to have your divorce granted without your agreement.
STEP 7 – DRAFT A FINAL DECREE
After we have filed suit and your spouse has been properly notified of the proceeding (through waiver or by serving your spouse’s attorney), we will figure out what your agreement is concerning children and property and work to incorporate that into a final decree that is suitable to all parties.
Please remember that Texas requires a 60 day waiting period after filing for divorce before the divorce can be granted. With agreed divorces, we will use this 60 day waiting period to finalize our agreement so that when Day 60 arrives, we will only need to submit the signed final decree to the Court for approval.