Most
divorces cases are ultimately resolved by agreement and do not require a
contested hearing in front of a judge.
The phrase “uncontested divorce” refers broadly to this category of
cases, though the amount of conflict and negotiations involved in reaching an
agreement in an uncontested divorce can vary dramatically.
TYPES OF UNCONTESTED
DIVORCE CASES
The
easiest (and therefore least expensive) uncontested cases are ones in which
virtually all of the issues have been resolved before the Petition for Divorce
is filed. This means the parties have
already reached an agreement on property division, conservatorship, possession
and access and child support, without overlooking elements required by Texas
law. This is the rarest type of
uncontested case.
The
vast majority of uncontested cases require some degree of negotiating,
especially because even couples who’ve reached agreements on many of the issues
have either overlooked controversial topics that must be resolved for the
divorce to be finalized, or simply can’t agree on the major issues. The effort it takes to get to a final
settlement depends on several significant factors.
FACTORS THAT INFLUENCE
PARTIES REACHING A FINAL SETTLEMENT
The
level of cooperation that exists between the parties.
If the parties are committed to maintaining an amicable relationship,
every step of the process is easier, even if they don’t see eye to eye on every
issue. However, if every incidental
dispute gets referred to the attorneys, it slows overall progress and drives up
the cost.
Whether
or not each party has all of the necessary information to begin negotiations, such as retirement and bank account
statements, documents reflecting the value of assets and amount of debts,
etc. It’s usually not possible to begin
negotiations without full disclosure of assets and debts. This is especially true when parties have
maintained separate accounts and do not have access to the other’s financial
information. Contrary to popular belief,
maintaining separate accounts does not mean that it can’t be divided between
the spouses. With few exceptions, all of
the assets and debts accumulated during the marriage are subject to
division.
If
both parties do not have complete financial records at their disposal, they
cannot reach an informed agreement on the overall property division. Most attorneys will exchange this information
informally, but in other cases it’s necessary to issue formal discovery
requests requiring the other party to produce specific financial records.
Whether
or not there are any immediate disputes that must be resolved before
negotiations can begin,
such as temporary use of property and allocation of monthly expenses. In the lowest conflict cases, the parties
have already been living apart or have worked out the terms of separation while
the divorce is pending. In other cases,
the parties are still living in the same house, and have not agreed on who will
move out temporarily, how the bills will be divided or how they will share
possession of the children. If there are
disputes on any of these issues, they will have to be resolved before
addressing the long term issues like property division and permanent terms of
the parent-child relationship.
The
attorneys will usually try to negotiate these issues, but in some cases a
hearing is required to settle the disputes.
While this can be a very expensive detour, it gives both parties a taste
of what court is really like, which more often than not motivates them to
settle the remaining issues.
Whether
or not both parties are represented by an attorney.
As a Williamson County Divorce Attorney, I generally prefer that the opposing
party hire an attorney whenever I’m handling a divorce case. Texas law doesn’t allow me to represent both
parties to a divorce, and I can only give legal advice to my client. Attorneys know what remedies are available
under the law, which narrows the scope of negotiations. They are also typically familiar with the
judges and court system in the county in which they practice, meaning they have
common knowledge about how certain judges generally rule on recurrent
issues. When the opposing party doesn’t
hire an attorney, they are prone to dispute issues that would otherwise be easy
to settle, or not even within the scope of legal possibilities.
This
is not an exhaustive list of variables in uncontested cases, but it does show
that each potential uncontested case requires careful evaluation. Whenever I meet with prospective clients,
it’s my goal to give them a clear roadmap of the process by identifying all of
the potential issues in their case and developing an effective strategy for
dealing with each one.