Texas Divorce Laws

Contested Divorce in Texas: What is a Contested Divorce

By:
Sophia Merton
Updated
May 26, 2022

If you’re getting divorced in the Lone Star State, the best case scenario is definitely an agreed divorce as opposed to a contested divorce in Texas. When you and your spouse are able to resolve any disagreements you have over things like dividing property and child custody before you file for divorce, the process can be a lot simpler, cheaper, and less stressful.

However, life doesn’t always go the way you want it to, and sometimes you and your spouse simply cannot reach an agreement on all divorce related issues.

If this is the case, your only option will be to proceed with a contested divorce. What is a contested divorce, and what is the process like?

Let’s dive in and explore everything you need to know about getting a contested divorce in Texas.

What Is a Contested Divorce?

couple fighting in texas contested divorce

A contested divorce is when you and your spouse don't agree on some or all of the issues related to dissolving your marriage.

A contested divorce is when both parties don’t agree on all the issues related to dissolving a marriage. This is the most complicated type of divorce because, one way or another, the parties will have to reach some sort of resolution regarding the terms of their divorce. If the spouses aren’t able to come to an agreement on their own or through some form of mediation, the court will ultimately decide the details of their divorce.

If one spouse wants to get a divorce and the other doesn’t, this is also considered a contested divorce. Similarly, if one party wants to file a no-fault divorce while the other wants to proceed on fault-based grounds, the divorce is contested.

What Is an Uncontested Divorce?

An uncontested divorce, on the other hand, is when spouses are able to agree on all of the issues related to dissolving the marriage. This is the simplest way to get a divorce. In certain instances, couples might even be able to get a divorce without the hiring a lawyer, which can save a lot of money during the process.

Understanding the Difference Between an Uncontested Divorce and a Contested Divorce

When a married couple begins the process of getting divorced, they can either seek an uncontested divorce (often referred to as an agreed divorce in Texas) or an uncontested divorce.

In an agreed divorce, both spouses are able to agree on all of the issues related to the divorce. These terms might include but aren’t limited to:

  • The division of marital property and debts
  • Child support
  • Child custody
  • Spousal support/alimony

Even if spouses agree on all but one issue, the divorce is considered to be a contested divorce.

Probably the most impactful difference between these two types of divorces is the length of the process and the cost of getting a divorce.

It generally costs the same amount of money to actually file for divorce regardless of whether it is agreed or contested. However, spouses that are embroiled in a contested divorce are a lot more likely to rack up bills for attorney’s fees and other related costs.

Even if you begin your divorce in a contested manner in Texas, the waiting period required by state law can allow you some time to sort out your differences and work toward an agreement before the case goes to trial.

If your partner is being particularly nasty in relation to your desire for a divorce, there’s a chance they will try to sabotage the process. Check out these sneaky divorce tactics to have a sense of what you should watch out for.

What Are the Steps of a Contested Divorce in Texas?

Texas cactus landscape divorce residency eligibility

In order to get divorced in Texas, you have to meet certain residency requirements.

If you are getting a divorce in Texas but you and your spouse can’t agree on all of the involved issues, the process can be more costly and time-consuming than if you are able to come to a resolution on the terms of the divorce. Let’s take a look at the steps you should expect to take in a contested divorce in Texas.

Make Sure You’re Eligible For a Divorce in Texas

The state of Texas has residency requirements when it comes to getting a divorce. Before you start filing out the divorce forms, you’ll want to make sure that you meet the requirements of Texas courts.

In order to get a divorce in the state of Texas, you must have lived:

  • In the county where you intend to file for divorce for the previous ninety days, and
  • In the state of Texas for at least six months before filing

For people with unusual living situations, there are a few exceptions.

For example, if one spouse has lived in Texas for at least six months but the other spouse lives in a different county, state, or country, you can still get a divorce in Texas.

Another exception is for spouses that are stationed on military bases. For military personnel that have been stationed in the state for at least six months and the country for at least ninety days, it is still legal to get a divorce in Texas even if it isn’t technically your state of residence.

If you are a Texas resident but you work serving the Texas or United States government elsewhere in the country or the world, you can still file for divorce in Texas.

Hire an Attorney

texas divorce lawyer contested divorce

If you're filing for a contested divorce, you're probably going to want to work with an experienced attorney.

While you can get a contested divorce without an attorney, it is generally advised that you find a lawyer you are comfortable working with when you and your spouse can’t agree on all of the terms of a divorce. Without an attorney, the divorce process can be complicated and difficult to navigate. Though the cost of hiring a lawyer can be steep, it can be well worth it when it means that the outcome of the divorce serves the interest of you and any children involved in the divorce.

Filing and Serving Divorce Papers

people signing divorce paperwork contested texas

The first official step in a Texas divorce is filing the Original Petition for Divorce.

Even if you’ve been thinking about and planning your divorce for some time now, the process doesn’t officially start in the state of Texas until you file an Original Petition for Divorce with your county’s courthouse. When you fill out this paperwork, you will need to state the reason behind your divorce. If you are going to need to request a hearing for child support or you require a temporary restraining order, you’ll want to communicate this to the court as well at this time.

The judge will sign off on your paperwork once you have filed it with the court. The next step is to serve your spouse with the divorce documents, which is an official process that lets your spouse know that you are filing for divorce.

There are a number of different ways to serve divorce papers to your spouse. It’s important to make sure you are proceeding with this step in the proper way. In any lawsuit, a necessary step is the “service of citation” or “service of process” where the individual that is being sued is formally notified.

When it comes to divorce papers, only individuals that are listed in Texas Rule of Civil Procedure 103 are allowed to serve divorce papers. These people include a sheriff, constable, and other people that are authorized by law or by the court. According to Texas Rule of Civil Procedure 106, these people must try to deliver the documents in person or by certified mail before trying other methods.

If the initial attempts at serving your spouse doesn’t work, you can ask the court to try and serve them in another way. Basically, if your spouse refuses to sign a return receipt for a certified letter or successfully dodges the process server, you will need to file a Motion for Substituted Service in addition to a Rule 106(b) Affidavit from the sheriff, constable, or private process server that tried to serve your spouse.

If the court grants you this order, the server is given permission to serve your spouse in another way, including leaving a copy of the documents with someone over the age of 16 at the service location or through other means. The laws in Texas even allow servers to deliver divorce papers through email and, believe it or not, social media if necessary.

If you don’t know where your spouse is, you will need to pull out all the stops to try and locate them. You’ll want to ask their family members, their friends, and their former employers if they know where they are. You can try and write to them at the last place you knew they were living, and try to find them through:

You will need to swear to the court regarding all of the methods you tried to find your spouse in order to be able to serve them in a different way. If you’ve done everything you can to try and locate them and are unable to, you can then ask the court to let you serve your spouse by publication or posting.

Service by publication is when notice printed in a newspaper that meets requirements outlined in Texas law. Service by posting is when notice is posted at the courthouse.

If there are minor children involved in the divorce, you can’t serve by posting. If you can’t find your spouse and you have minor children, service by publication will have to be your method of serving divorce papers to your husband or wife.

If you or your spouse doesn’t want to be served divorce papers, you can choose to file a waiver of service. This document doesn’t waive one’s right to be involved in the proceedings but instead waives one’s right to a formal notice of the suit. However, returning a signed waiver of service is only a step you can take in an uncontested or agreed divorce.

If an answer is filed by the respondent, regardless of whether or not the divorce is contested, spouses need to exchange initial disclosures at this time. This includes specific information about financial matters such as retirement plans and property.

These disclosures need to be shared within thirty days after the filing of the answer unless there is a written agreement between the spouses to extend the deadline.

Answering Divorce Papers

Once you have filed for divorce in Texas, your spouse has the right to file an answer once they have been served. An answer, in short, is a legal form that is filed with the court by the Respondent (the person who files for divorce is the Petitioner) in order to protect their right to have a say in the proceedings.

If the Respondent doesn’t file an answer, that doesn’t mean that the divorce can’t move forward. What it means, though, is that a default judgment will be made for the Respondent. They will therefore not have any say in how their property and debts are distributed. It also might mean that they don’t have a say in any issues surrounding children involved in the divorce.

In the case of a contested divorce, the Respondent has the right to file a counter-petition. This gives them the opportunity to communicate to the judge what they would like to happen in the divorce.

There is a deadline for how long the Respondent has to file an answer with the court. It’s important to have a clear sense of all of the deadlines within your divorce proceedings to ensure that things move along as quickly as you’d like them to.

The Waiting Period

The state of Texas has a waiting period that is required in almost all divorce cases. This means that courts will not grant you a divorce until at least sixty days after the divorce petition has been filed. However, in many cases, it will take more than sixty days to complete divorce proceedings, even in the case of an uncontested divorce.

There are only two exceptions to the waiting period rule, which are:

  1. Your spouse has received deferred adjudication or has been convicted of a crime that involves domestic violence against you or a household member
  2. You have an active magistrate’s order or an active protective order against your spouse for emergency protection due to domestic violence during your marriage

The reason behind this waiting period is to allow an ample amount of time for the parties involved to decide if they want to go through with the divorce. Someone might file for divorce in the heat of the moment, and the sixty day waiting period intends to let people have time to think things over.

Temporary Orders Hearing

Either spouse can ask the court to issue temporary orders in a Texas divorce. The reasoning behind this is to preserve property and outline other guidelines while the divorce unfolds. A spouse might do this in order to prohibit either spouse from damaging, hiding, mortgaging, or selling assets that belong to one or both parties.

In some cases, a judge might issue temporary orders if they believe that it is necessary to do so.

In cases that involve children, temporary orders might be necessary in order to protect the children’s welfare and safety. These orders might outline guidelines regarding the following:

  • Temporary possession (visitation)
  • Temporary conservatorship (custody)
  • The provision of health insurance
  • Temporary child support
  • The exchange of financial information that is necessary for child support orders

Other issues that temporary orders can involve include:

  • Temporary payment of debts
  • Temporary use of property
  • Interim attorney’s fees
  • Temporary spousal support
  • The exchange of financial information in order to divide property and debt fairly

If you are afraid that your spouse will harm you or your children before you are able to have a temporary orders hearing, you can ask that an emergency court order be issued known as a temporary restraining order.

The Negotiation Stage

If you want to avoid the expense, time, and stress of going to trial, you will want to find an alternative path to resolving the issues between you and your spouse when it comes to the terms of the divorce.

One such process is known as mediation. The mediation process involves you and your spouse separately meeting with an unbiased, trained, third-party mediator that will help the two of you come to an agreement on the contested topics.

If you are able to reach a settlement through mediation, you can avoid all of the disadvantages of the trial phase of a divorce. Not only can reaching a mediated settlement help you save money, but it can mean your divorce can be finalized in a much faster and less messy way.

Going to Trial

If mediation or other attempts at reaching an agreement don’t work, your contested divorce will proceed to trial. This is where you work with your divorce lawyer to present evidence in order to argue in favor of the outcome you desire. At the same time, your spouse and their lawyer will do the same.

When you take an uncontested divorce all the way to trial, you are ultimately putting control over the outcome in the hands of the judge. Issues that you couldn’t agree on, such as child support, child custody, or division of assets, will be determined by a judge.

Final Decree of Divorce

Depending on how complicated your divorce is, the trial period can last a long time. When the court makes its final judgment on the termination of your marriage, it will be outlined by a final divorce decree. Once both parties and the judge sign the final decree of divorce, the marriage is legally dissolved.

How Long Does It Take to Get a Contested Divorce in Texas?

There are a lot of different factors that will influence exactly how long it will take to finalize your divorce from the filing of the original petition to the signing of the final decree. When you factor in all of the steps involved, including the waiting period, you should expect a Texas contested divorce to take at least six months.

However, the more difficult it is to resolve the disagreements between the two of you, the longer the process will take. Particularly complicated and messy divorces can drag on for years. It is therefore in the best interest of everyone involved to reach a settlement before the divorce goes to trial.

Are You Getting Divorced in Texas?

Getting divorced can be an incredibly difficult experience for anyone, regardless of whether your divorce is agreed upon or contested. There can be a lot of stress involved emotionally and financially. One of the best ways to maintain your strength and carry forward through your divorce is to arm yourself with knowledge of your rights and responsibilities under the law.

For this reason, we’re building an ever-growing library of articles to help residents of Texas learn about how divorce works in the Lone Star State. Whether you’re getting divorced, getting married, or simply planning ahead, be sure to check out TexasDivorceLaws.org for more helpful resources.

Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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