Those who’ve been through divorce rank it as one of the most stressful experiences they’ve ever been through in their life – even more difficult than having to deal with the physical death of a loved one, which has some form of finality to it.
Divorce is complicated. It’s messy. And, having to then deal with a contested divorce amid everything is enough to send even the strongest person over the edge.
But what is a contested divorce anyway? How long does it take, and do you need a lawyer? This article explores the answers to these questions in depth.
What Is a Contested Divorce?
This is the most common form of divorce there is. When the parties involved are not in agreement on some of the issues surrounding the separation, litigation becomes the only avenue through which those disputes can be resolved.
When this happens, you have a contested divorce on your hands. Some of the most common pain-points for most people going through divorce include but are not limited to:
- Child and spousal support
- Child custody and visitation rights
- Division of property and debt
- Settlement of attorney fees and other litigation costs
- One half of the couple does not desire a divorce
The best divorce lawyers will usually attempt to settle these issues through a sit-down, face-to-face negotiation involving all parties. However, in many cases, these negotiations fail, and the only recourse is to proceed with litigation.
How Long Does a Contested Divorce Take?
No two cases are the same. While it is possible to make an educated guess as to how long a contested divorce will take, it ultimately boils down to the level of opposition or resistance there is from one of the parties.
If the level of resistance is high, then it goes without saying that the litigation process may take longer to conclude because of the significant back and forth between the parties.
Steps of a Contested Divorce
There are generally eight steps involved in a contested divorce in Texas. These phases have to be completed before a divorce can be granted.
1. Meeting With a Divorce Attorney
If you’re wondering, “Do I need a lawyer for divorce”? The answer is – yes if you want to get the best outcome from the whole process. Bear in mind that the cost of divorce in Texas is 22 percent higher than the national average.
It could cost anywhere between $15,000 and $35,000, depending on the complexity and if there are children involved. Filing the divorce petition alone costs roughly $300. So, if you don’t want to get the short end of the stick, then you need a courtroom gladiator on your corner to protect your rights.
Once you’ve settled on the best divorce attorney in Texas to represent you, they will interview rigorously to establish all the facts about your case. This is important since it forms the legal basis for their defense or opposition.
During the interview process, your lawyer will gather all the documents that are relevant to your case. These may include those of the children, marital property, and any other background information that they deem pertinent to the case.
They will then use this information to determine what you are entitled to under the eyes of the law and use it to prepare your divorce petition. You need to be transparent with your attorney and let them know what you want them to ask for in the petition.
This includes all matters involving child custody, child support, alimony, the division of marital debt, as well as, the division of marital assets. Also, ensure that you read and keep copies of all the paperwork your lawyer files with the court.
2. Serving Your Spouse With the Divorce Petition
As soon as your divorce attorney files the divorce petition with the court, they will then serve your spouse with the divorce papers. There are several ways to do this. They include:
- Personal service where your lawyer can use a law-officer like a sheriff or a private process server to hand the petition papers to your spouse
- Certified mail with a return receipt requested
- Newspaper notice if you can’t locate your spouse
There is usually a predetermined amount of time you will have to wait after service before you can proceed with the process. In most jurisdictions, including Texas, the court system is responsible for ensuring that your spouse is properly served with the court documents. This is usually done through the sheriff’s office or using a court-appointed process server.
3. Your Spouse’s Response to the Petition
According to Texas divorce laws, your spouse has 20 days from the date of service to respond to your divorce petition. This period runs concurrently with the 61-day waiting period before the divorce can be finalized. If they don’t respond within this time limit, they will be deemed by the court to be in default, in which case you may get a default judgment ruling on your case.
Therefore, if you are on the receiving end of a divorce petition, it is in your best interest to retain the services of a good attorney and file your written response with the court. The default judgment will be for the plaintiff, which means that they will be granted whatever they asked for in the petition “within reason”.
The plaintiff would, therefore, have to provide evidence to show that the division of marital assets and debt is both right and justified. They would also have to show that whatever they are asking for with regards to the children of the marriage is in their (the children’s) best interest.
4. Entering of Temporary Orders
The court may deem it necessary to enforce some temporary orders regarding how certain matters will be handled during the divorce proceedings. For instance, when dealing with a case where children are involved, a judge may compel one of the spouses to pay temporary child support for the duration of the court case.
They may also issue an order compelling the household breadwinner to continue supporting the household by paying certain bills until the conclusion of the case. Another common temporary order is one that stops both parties from draining any bank accounts or frivolously spending the money saved. More often than not, the divorce proceedings will usually not start until certain temporary orders are in place.
5. Discovery Phase
If your spouse responds to the petition within the prescribed time and contests the divorce, then you have a long road ahead of you. The case proceeds to the discovery phase, where both spouses gather evidence from each other with regards to income, marital assets, debt custody, and all other information that is pertinent to the case.
This is typically done through depositions, document requests, interrogatories and may involve documents such as bank and credit card statements, as well as tax returns. There is a time limit set for both parties to respond to any discovery requests.
In some instances, one of the parties may intentionally miss deadlines in an attempt to hide assets or slow down the divorce process altogether. You need to work with an attorney who can stay on top of an errant spouse who doesn’t respond to your requests within the allotted time.
6. Settlement Negotiation
Most judges always encourage both parties to reach an agreeable settlement before going to trial. The judge may give their “off-the-record” opinion on how the case is likely to play out in an attempt to get them to settle.
Settlement negotiation may involve the litigating parties going to mediation, where a neutral third party attempts to help them negotiate all unresolved issues. The judge may also call for pretrial conferences where the attorneys for both parties meet with and provide updates to the judge on how the settlement negotiation is going.
This phase of the divorce process can take up to two months. However, judges in Texas don’t allow this phase to stall the case for too long.
7. Divorce Trial
Litigation is usually the last resort, after all else fails. If the spouses fail to reach an agreement in the settlement negotiation phase concerning some pertinent issues, the court will decide for them in the trial.
The duration of a divorce trial can last anywhere between a couple of weeks to several months, depending on the complexity of the case. If multiple witnesses need to testify, or a large number of assets and debts need to be divided, this lengthens the trial since any new information that comes to light needs to be entered as evidence.
In instances where settlement negotiations resolve the majority of the contentious issues, but one or two remain disputed, the divorce trial can be limited to just those specifics. Divorce trials in such instances can be concluded in under a week.
8. After the Conclusion of the Trial
Just because the trial has ended doesn’t automatically mean that the divorce case is over. In complex cases, it may take the judge several weeks before they make their ruling.
Moreover, even after the judge signs the divorce decree, the dissatisfied party has a 30-day window within which to file a Notice of Appeal to contest the terms of the divorce. They then have a couple of months to file their brief with the appellate court.
At this point, the case could have one of two outcomes. The appeals court may affirm the judgment in which case the divorce decree remains as-is. Alternatively, it could reverse the court-issued decree and send it back to the trial court to reopen the case for further proceedings. Either way, it might take some time before it’s concluded.
What Happens in Texas When It Comes to Division of Assets in Divorce
Texas is considered a “Community Property” state. Community property here encompasses all assets and debt acquired in the duration of the marriage.
It effectively means that if settlement negotiations fail to resolve the division of assets and debt in the divorce, the court does a 50-50 split between both spouses. This equal division of property and debt is always done with due regard to the rights of both the spouses and of any children of the marriage.
Community property also includes all assets acquired by either spouse while living in a different state that would have otherwise been considered community property had they been living in Texas during the period. Likewise, all assets acquired by either spouse in exchange for property that would have otherwise been considered community property had they been living in Texas during the period, is also up for equal division.
Divorce in Texas With Child vs. Divorce Without Children
Divorce without children is less complicated and more likely to reach its conclusion a lot faster than one where kids are involved. Child custody laws in Texas provide for joint managing conservators. A “conservator” is simply another name for a “custodian”.
However, the court always looks out for the best interest of the child first. When issuing a child custody order, the Texas court system has several options, such as:
- Sole custody where the child resides primarily with one parent. The parent in question has exclusive decision-making rights as pertains to the child’s upbringing
- Shared custody where the child resides with each parent for a minimum of 35 percent of the year
- Split custody (though rarely used) where each parent is awarded sole custody of at least one of multiple children
Despite the options available, the law expresses a distinct preference for shared custody as equally as practically possible. So, more often than not, this is the go-to agreement in divorce cases unless there is irrefutable evidence of parental misconduct, absenteeism, neglect, abuse, or domestic violence.
Additionally, as per Texas child support laws, the non-custodial parent – meaning the parent who doesn’t have physical custody of the child – is the one who is legally obligated to pay child support. The payments are calculated as a percentage of the non-custodial parent’s income.
The court may review the special circumstances surrounding a case to either increase or decrease the amount in child payments. If you need professional help with your child custody and support battle search online for the best child custody lawyers near me, and you will be connected with a top attorney today.
Protect Your Rights – Get the Best Legal Help
Nobody ever gets married planning to divorce. However, if you’ve reached the end of the road in your marital union, you need to get the best divorce lawyers to help protect your rights as well as that of your children in a contested divorce in Texas.
If you have more legal questions, you can also chat now with a Laws101.com attorney, where you’ll be instantly connected to a lawyer who can give you legal guidance on your specific case or question.