Most, though not all, family law cases involve a divorcing couple. The reasons for ending a marriage may range from adultery by one or both spouses to the simple reality that the couple may no longer have common interests and goals, making the marriage insupportable. Whatever the circumstances, the decision to divorce and the process of divorcing can take a high emotional toll on everyone involved. Our attorneys regularly handle a wide variety of divorce cases—some in which the former couple are able to agree on most issues and some that are extremely contentious. If you and your spouse have decided to divorce, regardless of the reason behind the decision, you deserve to have your case handled with the utmost competence and compassion.
Mandatory Waiting Period
Many people feel that they just want the divorce to be over with as quickly as possible once they have reached the decision to end the marriage. This impulse is understandable, but it’s important to know that Texas law mandates a a 60-day waiting period before a divorce can be finalized. The waiting period is measured beginning on the date of the initial filing of the divorce petition. This time frame can be viewed as a cooling-off period for couples who may have a reasonable chance to reconcile. For those determined to divorce, this period can be used to set ground rules (called “temporary orders”) for the parties’ conduct while the divorce is pending. The parties may also begin working with their attorneys to plan how the marital estate will be divided and, if there are children of the marriage, what types of child support and custody arrangements will be put in place for them.
Contested vs. Uncontested
When a couple divorces, the divorce decree must spell out the terms of the divorce including: how property and debt is to be divided, whether spousal support is warranted, and what type of child custody and support orders will be put in place, if the couple has children. Whether these terms can be agreed upon by the parties or not determines whetherthe divorce is contested or uncontested.
An uncontested divorce means that both spouses agree on all terms of the divorce. Uncontested divorces are not uncommon and, when feasible, can save the parties of a lot of money, time, and heartache. If all terms of the divorce are agreed by both spouses, the court may enter a decree conforming with the parties’ agreement.
If there are any issues that the couple cannot agree upon, this is a contested divorce. The contested issues must be resolved by the parties out of court, such as in a mediation, or theissues may be presented to a judge or jury for trial on the merits.
Fault vs. No-Fault
In Texas, divorcing couples are not required to state fault grounds in order to be able to legally divorce. In fact, many spouses allege “insupportability” as the reason for the divorce. You may have heard the concept of insupportability referred to as “irreconcilable differences.” Basically, it means that staying married no longer makes sense for the couple because of personality conflicts, different goals or expectations, etc., and there is no reasonable expectation of reconciliation for this couple. Voluntary separation without cohabitation for at least three years is also considered a no-fault ground for divorce, as is the confinement of one spouse in a mental hospital for at least three years.
In some cases, though, fault grounds may and probably should be asserted in the divorce pleadings. Fault grounds under Texas law include: adultery, abandonment, cruelty, and felony conviction of one spouse resulting in that spouse’s imprisonment for at least one year.
It is important to consider whether fault, even if present, should be alleged in what are, after all, public documents. In some cases, the advantages of doing so are clear. For example, if the complaining party is able to successfully prove fault by the other party, the court can consider fault in order to award an unequal property division, to award or not award spousal support, and even to determine child custody orders. In other cases, the determination is more difficult. Be sure to discuss with your attorney whether alleging fault grounds is the best course of action.