Practice Areas
Uncontested Divorce
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What Is an Uncontested Divorce?
An uncontested divorce is a divorce in which both spouses have reached an agreement on every issue necessary to end the marriage.
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The parties do not necessarily have to agree when the divorce is first filed. A divorce may begin with disagreements and later become uncontested after the spouses negotiate a complete settlement. What matters is that, before the divorce is finalized, there are no remaining issues for the judge to decide.
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An uncontested divorce is generally faster and less expensive than contested litigation because the parties can avoid extensive discovery, temporary orders hearings, mediation, and trial when those procedures are unnecessary.
What Do We Have to Agree On?
Calling a divorce “uncontested” means more than simply agreeing to get divorced. The spouses must agree on the terms of the divorce.
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For a divorce involving property, the parties must determine who receives the marital residence, vehicles, bank accounts, retirement accounts, personal property, and other assets. They must also determine responsibility for mortgages, credit cards, vehicle loans, taxes, and other debts.
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If children are involved, the agreement must address conservatorship, parental rights and duties, the child’s primary residence, geographic restrictions, possession and access, child support, health insurance, dental insurance, uninsured medical expenses, and other issues affecting the children.
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If even one significant issue remains unresolved, the court may ultimately have to decide that issue.
Texas Has a 60-Day Waiting Period
Even when the spouses agree on everything, Texas generally requires the parties to wait before the divorce can be granted.
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Under Texas Family Code § 6.702, a court ordinarily may not grant a divorce before the 60th day after the Original Petition for Divorce is filed. The statute contains limited exceptions, including certain circumstances involving family violence.
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The sixty-day period begins when the divorce petition is filed, not when the spouses reach an agreement.
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The waiting period is a minimum. It does not guarantee that a divorce will be completed on the sixty-first day. The Final Decree of Divorce still must be prepared, reviewed, signed when appropriate, and presented to the court.
An Uncontested Divorce Still Requires a Final Decree
The Final Decree of Divorce is the document that actually establishes the parties’ rights and obligations after the marriage ends.
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The decree should accurately identify and divide the parties’ property, allocate debts, address retirement benefits, and contain all necessary provisions concerning the children when applicable.
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This is one of the reasons an uncontested divorce should not be treated as merely filling in forms. The parties may agree completely about what they want while still failing to use the language necessary to accomplish that result.
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Once the judge signs the decree, the parties will generally be expected to comply with what the decree actually says.
Retirement Accounts Require Special Attention
Retirement benefits are one area where an apparently simple divorce can become complicated.
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If a spouse is receiving a portion of the other spouse’s 401(k), 403(b), pension, or another qualified retirement plan, the parties may need a Qualified Domestic Relations Order, commonly called a QDRO, in addition to the Final Decree of Divorce.
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Government retirement benefits, including TRS, ERS, FERS, military retirement, and other plans, may require specialized orders or forms.
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IRAs are handled differently and generally require the appropriate transfer documentation through the financial institution.
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An agreement that simply says the parties will “split the retirement” may create substantial problems if the decree and necessary retirement orders do not explain exactly how the division will occur.
The House Must Be Addressed Correctly
If the parties own a home, the decree should clearly state what happens to it.
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The parties may agree to sell the residence and divide the net proceeds. Alternatively, one spouse may receive the home and compensate the other spouse for some portion of the equity.
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If both spouses are obligated on the mortgage, awarding the house to one spouse does not automatically remove the other spouse from the loan. The mortgage lender is not ordinarily bound by the property division in the divorce decree.
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For that reason, an agreement involving the marital residence may need to address refinancing, deadlines, sale provisions, responsibility for expenses, and what happens if refinancing cannot be completed.
Child Custody Agreements Must Be Detailed
Parents sometimes tell us that they have already resolved custody because they have agreed to “50/50” or agreed that they will “work together.”
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Those concepts still have to be converted into an enforceable court order.
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The decree should address the possession schedule, holidays, summer possession, exchanges, parental rights and duties, geographic restrictions, child support, medical support, and other issues that could create disagreements later.
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A detailed order does not mean the parents expect to fight. Clear language can actually reduce future conflict because both parents understand their rights and responsibilities.
Child Support Still Has to Be Addressed
Parents cannot simply assume that an equal possession schedule automatically eliminates child support.
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Texas child support is governed primarily by Chapter 154 of the Texas Family Code. The appropriate amount depends on the circumstances, including the obligor’s net resources, the number of children before the court, other children the parent has a duty to support, the possession arrangement, and whether the parties are asking the court to approve a deviation from the statutory guidelines.
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Even in an uncontested case, child support, medical support, and dental support should be addressed clearly in the final order.
Do We Have to Go to Court?
The precise procedure depends upon the court and the circumstances of the case.
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Traditionally, at least one spouse presents the divorce to the judge at a short final hearing commonly called a prove-up. The party provides the testimony necessary for the court to grant the divorce and approve the requested relief.
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Procedures can vary between counties and courts, including the manner in which agreed matters are submitted. Your attorney can determine the procedure required by the particular court handling the case.
Do Both Spouses Need Lawyers?
Texas does not require each spouse to retain an attorney.
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However, one attorney cannot represent both spouses in the divorce. An attorney owes professional duties to his or her client and cannot simultaneously represent spouses whose interests may differ in the same divorce.
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The other spouse may choose to proceed without counsel or retain an independent attorney to review the proposed agreement and Final Decree of Divorce.
Having the other spouse review the documents carefully before signing can also reduce disputes about what the parties actually agreed to.
Uncontested Divorce Can Save Significant Time and Expense
When spouses are able to reach a complete and informed agreement, an uncontested divorce can substantially reduce the expense and stress associated with litigation.
There may be no reason to conduct extensive discovery, take depositions, hire multiple experts, or prepare for trial when both parties have already exchanged the necessary information and reached a fair agreement.
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The objective should not simply be to finish the divorce as quickly as possible. The objective is to resolve the case efficiently while ensuring that the final documents correctly implement the agreement.
An Uncontested Divorce Can Become Contested
An agreement is only useful if both spouses continue to agree.
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If negotiations break down, one spouse refuses to sign the proposed decree, previously undisclosed property is discovered, or the parties develop a disagreement concerning the children, the case may become contested.
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The divorce can then proceed through the ordinary litigation process, including discovery, temporary orders, mediation, and trial when necessary.
Fergus & Tomanka Handles Uncontested Divorces Throughout Central Texas
An uncontested divorce can be an efficient and cost-effective way to end a marriage when both spouses have reached a complete agreement. The simplicity of the process, however, should not be confused with the importance of the Final Decree of Divorce. Property, retirement benefits, real estate, debts, and parenting arrangements should be addressed carefully so the agreement works after the divorce is complete.
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At Fergus & Tomanka, we represent clients throughout Central Texas in uncontested divorces and can prepare the Final Decree of Divorce and related documents necessary to properly complete the case. When an uncontested matter involves a home, retirement benefits, children, or other significant assets, we work to ensure that the parties’ agreement is accurately reflected in enforceable final orders.
Call (512) 291-6952 to set up a consultation with one of our attorneys OR simply Make An Appointment on your own!
These issues can be quite difficult to handle on your own due to the legal complexity and emotionally-charged nature of the proceedings. It’s best to consult with an experienced family law attorney in your area.