Difference Between Contested vs. Uncontested Divorce

couple arguing, woman sad

Wondering what your options are when it comes to contested vs uncontested divorce? While most people would prefer to have an uncontested divorce, where the two parties agree about all terms pertaining to the divorce, property division and child custody, even the most amicable of divorces can end up contested. So, who typically qualifies for an uncontested divorce and what are the reasons to contest a divorce? Read on to learn more.

What does contested mean in court?

One of the biggest misconceptions about contested vs uncontested divorce, is that when a divorce is contested the divorce must also be contentious. That’s not necessarily the case. When something is contested in court, it simply means that the parties to a lawsuit disagree about an issue or issues pertaining to that lawsuit.

For example, in a contested divorce, the parties may disagree about issues pertaining to property division or how child custody and visitation should be handled but have amicably sorted out other issues. So, while a divorce may be contested, that doesn’t mean it always has to be a contentious divorce. However, when emotions, anger or acrimony enter the picture, divorces can get contentious.

What is the difference between contested and uncontested divorce?

The difference between contested and uncontested divorce is pretty straightforward. In order to get an uncontested divorce in Texas, the two parties basically agree about everything pertaining to their divorce, including exactly how the marital estate will be divided, how retirement accounts will be divided, who keeps any assets or property in the marital estate and how child custody, child support, alimony and spousal support and other issues will be handled.

In reality, uncontested divorces in Texas are pretty rare and usually make the most sense for couples who own few if any assets or property and don’t have children. That doesn’t mean an uncontested divorce is out of the question for more affluent couples with kids but you do need to get educated about the intricacies of divorce in order to get to that point, and an experienced divorce and custody lawyer is your best resource if an uncontested divorce is the route you hope to go.

Where we see the most, truly uncontested divorce cases are where both parties are apprised of all of the assets. They’re both involved with and understand the bank and financial information. They both get along really well with respect to kids, and more importantly, they clearly understand, all of the rights that they’re either gaining or giving up in regard to the kids.

I have people call me all the time who say, “Hey, we’ve got this all resolved.” And those are really the best cases if they truly have resolved everything, but what happens sometimes is they don’t understand what the effects of the order mean, or they don’t understand what the division of property is going to look like because they don’t have access to the business or financial accounts. They’re just going trust the other party.

On the other hand, all it takes for a perceived uncontested divorce to turn into a contested divorce is for a couple to disagree about one issue for trust to be violated. Oftentimes, trust is breached in divorce cases, with adultery, domestic violence, family violence or substance abuse.

The reason that uncontested cases are rarer than contested divorces is that there are fundamental issues involved in ending a marriage that creates scenarios that are a bit more complicated than a party might think at first glance.

For example, dividing up equity in a house and dividing up a retirement account, I always say a blind monkey can do that. But figuring out the effects of the tax consequences of a house versus retirement, deciding what to do with a business and your interest in that business and agreeing on all of the intricate details regarding child custody can be challenging.

What are the reasons to contest a divorce?

In simple terms, if your spouse has served you with divorce papers and you disagree with him or her regarding how your marital estate should be divided or how child custody issues should be handled, you will likely want to contest the divorce. That doesn’t mean you want to or will be able to stop the divorce, it just means your and your spouse’s wishes for the divorce and/or custody settlement differ.

There are many reasons to contest a divorce, big reasons and little reasons. I can’t stress enough how important it is to speak with an attorney to educate yourself about the potential reasons, along with how Texas divorce laws work in regard to community property (Texas is a community property state) and what your rights and duties are as a parent in Texas.

NOTE: These are all topics we take a deep dive into during initial consultations with prospective clients at the Sisemore Law Firm. If you leave a consultation with a contested divorce lawyer and don’t understand those issues or how the lawyer will strategically approach your case, find a different lawyer.

If you can’t agree on how to divide the marital estate you’ll need to contest the divorce.

Couples often disagree about the value of certain pieces of property or how property will be divided between the two. These disagreements are common and even happen with couples who get along well. People also disagree on what assets and property qualify as community property versus separate property. Again, these disputes might be minor but are still enough to take an uncontested divorce into contested divorce territory.

If you’ve been subjected to cruelty or adultery, you may want to contest your divorce.

While Texas is a no-fault divorce state (meaning you don’t need to prove fault grounds in order to get a divorce), the courts will consider fault grounds in Texas (cruelty, adultery, felony conviction, abandonment) when determining the just and right division of the marital estate. For example, if you can prove your spouse routinely assaulted you, a judge may award you a larger portion of the marital estate and/or spousal support, depending on your circumstances.

If you can’t agree about child custody and visitation issues, you’ll need a contested divorce.

There are many more intricacies involved with child custody and visitation than most parents realize. Disagreements about child custody provisions may include, who gets primary custody, whether possession and access should be supervised, whether one parent should have the right to designate the residence, whether there will be geographic restrictions, whether there is a parent with the exclusive right to make educational and medical decisions—and that’s just the beginning.

While the needs of children and ability of parents to provide and care for children usually evolve over time, you don’t want to end up back in court arguing over custody provisions sooner than you need to. Modifying custody orders after the fact isn’t easy and the burden of proof is much higher than for the original orders. Getting the arrangements as close to right as possible from the start will save you a lot of stress, money and headaches later. 

You may want to contest a divorce if you and your spouse own a business (or businesses).

Coming up with a valuation for a business can be difficult, especially if you haven’t been involved in the day-to-day operations of that business. Couples often disagree about business valuations during divorce, as well as what roles the spouses will play in the business (if any) following divorce.

In complex cases involving business interests, you typically want to get a business valuation expert, and possibly an asset tracing expert, involved. You may also need to decide whether you want to be a stockholder in the business or prefer a cash payout, and whether that cash payout is secured by assets or involves a longer-term payout. That’s when it’s critical to exploit the skills of a divorce attorney with experience in such complicated matters.

Can I get a contested divorce without attorney representation?

People don’t need to hire contested divorce attorneys in order to get a contested divorce in Texas. However, I highly discourage anyone from trying to handle their own divorce without consulting an attorney. Once your divorce is final, it’s final, which means if you find you’ve overlooked or undervalued an asset in your original divorce settlement, you can’t go back and regain those assets afterward.

While attorney fees can be costly, what you could lose by not handling your divorce properly—and to your best advantage—could cost you a whole lot more. As noted above, modifying custody and visitation orders is also much more difficult than getting it right the first time around. Every time you need to get a modification, that’s more money you’ll need to pay in attorney’s fees.

How long does a contested divorce take?

If you take into account the fact that you must be a resident of Texas for at least 6 months before you can file for divorce here and the fact that Texas has a 60-day waiting period, the fastest you can get a divorce in Texas would be a minimum of 60 days, and that’s more realistic for an uncontested divorce than a contested divorce.

How long it will take to resolve your contested divorce all depends on you, your spouse and what issues you are trying to resolve. If you only have a few issues to resolve, and you and your spouse get along well, you may be able to resolve your divorce in six to 12 months. If you can’t resolve your issues through mediation and need to go to court, it will take more time. Couples with complex property disputes, heated custody disagreements and highly contentious relationships could spend years trying to finalize a contested divorce.

Weighing your contested vs uncontested divorce options?

The uncontested and contested divorce attorneys at the Sisemore Law Firm are here to help. If you live in Dallas / Fort Worth and the surrounding counties and have questions about divorce, child custody or child support in Texas, you can reach our office at (817) 336-4444 or by connecting with us online.

Photo Source: Canva.com

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