Texas Divorce Laws

What Happens When a Divorce is Contested in Texas

By:
Sophia Merton
Updated
September 1, 2022

There are many decisions to make when you’re getting divorced, and sometimes you and your spouse don’t agree on all of the major issues. If you are pursuing divorce without already having reached an agreement about things like property division, child custody, and child support, your divorce is considered contested. What happens when a divorce is contested in Texas, and what should you expect?

An amicable and agreed divorce is always preferred, but sometimes it simply isn’t possible.

In some cases, it’s necessary to fight to protect your rights and interests.

Let’s take a look at what you need to know about contested divorces in Texas.

What is a Contested Divorce in Texas?

A contested divorce in Texas is when the two divorcing spouses don’t agree on all of the issues in the divorce. This might mean that they don’t agree on the terms of their child support, child custody, property division, and more.

real estate being divided in contested divorce in texas

There are a number of important decisions that need to be made during a Texas divorce, including property division, child custody and support, and potentially spousal support. When couples can't agree on all of the terms of the divorce, the divorce is contested.

Your divorce will most likely be considered a contested divorce unless you and your spouse have reached an agreement about all of the issues in a divorce.

When you and your spouse agree on all of the involved matters in your divorce, it means that you can finalize your divorce by agreement. If either you or your spouse refuses to sign a settlement, however, the divorce is contested.

Hopefully, the two of you will be able to work out an agreement on your issues through Texas divorce mediation or another means. If you aren’t able to find a middle ground you can both live with outside of the courts, the case will go to trial and a judge might eventually need to decide how one or more issues are dealt with.

Sometimes, one spouse will want to make the divorce drag on for as long as possible in order to punish or hurt their soon-to-be ex. However, this can be incredibly costly to all parties involved, not to mention emotionally and mentally taxing.

How Do I Know If My Divorce Is Contested or Uncontested?

There are almost always a lot of decisions that need to be made when you decide to get divorced. These can relate to issues including spousal support, child custody, child support, asset, and debt division, and more.

two people shaking hands in uncontested divorce in texas

If you and your spouse are able to agree on all divorce-related issues, you can pursue an uncontested divorce.

If you and your spouse come to an agreement about all of the major issues in your divorce, your divorce is uncontested. However, if you disagree on even one major issue, your divorce is contested.

It’s possible that your divorce will start out contested but will become an uncontested case once you work out the details of how to divide assets, share parenting responsibilities, and more.

What Happens When a Divorce Is Contested in Texas?

The official beginning of a contested divorce in Texas is when you or your spouse files divorce paperwork with the county court. Either spouse can file the Original Petition for Divorce– the consent of both spouses is not needed to begin the divorce process.

legal statue in courtroom during temporary orders hearing contested divorce texas

The first step in any divorce, whether contested or uncontested, is filing the necessary paperwork with the courthouse.

The divorce petition will contain information including:

  • The reason the petitioner is asking the court for a divorce
  • Any temporary orders that the petitioner needs from the court
  • The relief that the petitioner is requesting from the court

The process of getting a contested divorce is more complicated than getting an agreed or uncontested divorce. Let’s take a look at a typical timeline for a contested divorce in Texas.

Filing and Service

When the petitioner files for divorce, the court will receive the documents and they will be submitted for a judge’s signature if a temporary restraining order has been requested. The court will also prepare any of the documents that will additionally need to be served to your spouse.

These typically also include a citation that outlines the details of what has been filed and what will be expected of them in terms of filing an answer as well as a precept. A precept is a legal notice that the court provides if there is a hearing set and an individual must appear before the court at a certain time and place.

The documents can then be retrieved by a process server or law enforcement member in order to serve the spouse that didn’t file the paperwork. This party is known as the respondent.

The respondent will have a deadline before which they have to file their answer with the court once they have received the divorce paperwork. This deadline is 10 am on the first Monday which occurs twenty days after they received the petition for divorce.

The answer to the petition in a contested divorce usually includes a denial of the allegations and terms that have been presented in the original petition.

The respondent can also file a counterpetition if they have independent claims that they want to assert against the petitioner.

If you are finding yourself in this position, you are in a contested divorce. Usually, both parties will have an attorney of their own to represent their interests.

Each individual having an attorney can be helpful in a number of different ways. On top of assisting with all of the legal aspects of the divorce, using attorneys can help to alleviate a lot of the emotional elements during the decision-making process. They can also help both parties make decisions that are more objective and ultimately lead to a better outcome.

Temporary Orders

The first major event that will occur in a contested divorce is a temporary orders hearing.

judge during hearing in contested divorce case in texas

A temporary orders hearing is sort of like a mini-trial, complete with presenting evidence and hearing from witnesses.

During these hearings, witnesses are called to testify and evidence is presented. The judge will ultimately issue orders regarding a number of different relevant issues. In this way, you can think about the temporary orders hearing as a kind of mini-trial.

Since the divorce process doesn’t happen overnight, temporary orders help to keep the family stable before the divorce is final. These orders help make sure that both parents still get to spend time with their children, bills continue to be paid, and other essential and immediate issues are decided.

Quite a bit of preparation is involved before the temporary orders hearing.

Negotiation

Negotiation will be required during a contested divorce since decisions on important issues haven’t yet been made. Both parties will need to find a compromise point that they can live with in order to avoid having a judge make decisions for them.

In almost all Texas contested divorces, the divorce process will reach its end during the mediation process.

Mediation is when a third-party, neutral attorney is selected to help the spouses come to an agreement about all of the issues that remain contested. This attorney doesn’t have any relation to either spouse and is an independent party.

During mediation, both parties will meet at the office of the mediator but will go to separate rooms. The mediator then spends time with each side, going back and forth between them to help facilitate conversation about each contested issue. Hopefully, an agreement will be reached during this process.

Mediation is scheduled for a pre-determined amount of time. In many cases, this will be somewhere between three and four hours.

It is natural to feel skeptical before going to mediation, particularly if you and your spouse are butting heads on important issues. However, many people find that the process is very helpful to help come to an agreement.

Finding a compromise point that both sides are happy with during mediation is often a much better option than having a judge decide what will happen regarding essential parts of your life. This way, you both get to have a say rather than receiving an order mandated by the court.

Trial

If the two spouses are unable to reach an agreement in the mediation process, the trial is the final stage of a contested divorce. This can happen after the divorce case has been going on for anywhere from many weeks to years.

During the trial, both sides will make their arguments and present evidence. The court will ultimately make a judgment about the issues that couldn’t be agreed upon.

Very few divorce cases make it to this point in the process. Couples are almost always able to reach an agreement before it is up to a judge to make these decisions.

Many experts agree that settling a case outside of court is far superior to letting a judge decide your fate for you. It lets the two of you stay in control of the outcome, even if you have to compromise quite a bit to find some common ground.

You aren’t required to have a lawyer in a Texas divorce and you are free to choose to represent yourself as a Pro Se Litigant. However, it is pretty much always recommended to have legal representation in a contested divorce.

The decisions that are made during a trial can have a huge impact on your life, including your post-divorce finances and relationship with your children. Even though hiring a divorce attorney can be expensive, a lot is at stake that is worth protecting during a divorce.

The Most Common Contested Issues in a Texas Divorce

If you are just starting the process of divorce, you might be wondering whether any issues will crop up to make your case contested and more complicated. Let’s look at the most important decisions that need to be made in a divorce to help you understand what to expect.

Property Division

Texas is one of nine states in the U.S. that is a community property state.

There are two different characterizations for property in the context of Texas divorce law: separate property and community property. This applies to both real and personal property.

If two spouses are unable to come to an agreement regarding how their property will be divided, a court has the authority to divvy it up how they see fit. There are a lot of different factors courts might consider when determining the division of community property, including:

  • Education level
  • Age
  • Fault in marriage
  • Earning potential

Of course, there are also liabilities and debts to divide, too. When a person brings a debt of their own into a marriage, they are awarded the debt in divorce. If a debt is taken on during marriage, it is usually split between the spouses during a divorce. In some cases, one spouse might be required to take on the burden of a debt that was incurred by the other spouse during the marriage.

Spousal Support and Maintenance

Spousal maintenance is only awarded by the court when specific qualifications are met. However, parties can contractually agree to alimony. Texas is one of the most difficult states in the country to have spousal maintenance ordered in a court, but even if that isn’t on the table, the issue of contractual alimony can be a contentious one.

Child Custody

There will always be orders in divorce decrees and settlements that have to do with child custody, possession, and support when there are minor children of the parties. As you might imagine, child custody can be a difficult issue to sort out when two parents have different desired outcomes.

Child Support

The parent that isn’t awarded primary possession of minor children in the marriage or who spends less time with the children typically is required to pay child support to the parent with primary custody. This money is intended for the benefit of the children and is typically paid in monthly installments.

There are child support guidelines in the state of Texas that indicate a specific percentage of the support payer’s net resources, a term which is defined in the guidelines. This percentage is based on the number of children the individual is paying financial support for.

How Much Does a Contested Divorce Cost?

A contested divorce in Texas costs $15,600 on average. Numbers like these can be pretty overwhelming when you are first deciding how to approach your divorce. Because contested divorces usually require significant help from an attorney, the cost is much higher than that of an uncontested divorce.

An uncontested divorce in Texas, on average, ranges between $300 and $5,000. As you can see, this is a pretty big range.

On the lower end of the spectrum, it only costs a few hundred dollars to get a divorce without a lawyer in most cases. When you aren’t dealing with attorney’s fees, you’re generally just dealing with filing fees and other court fees.

On the higher end of the spectrum, lawyers are involved. Depending on how much legal help you need from an attorney, you might find your divorce costs anywhere within this significant range.

This means that getting an uncontested divorce is quite a bit more affordable than a contested divorce. The most expensive way to get divorced is almost always to take your case all the way to trial. However, it’s worth noting that collaborative divorces can also get pretty pricey depending on your particular circumstance.

This guide takes a deeper dive into the cost of divorce in Texas.

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

Divorce almost always takes at least sixty days in Texas because of the mandatory sixty-day waiting period. This waiting period is required in almost all divorce cases barring a few fairly specific exceptions.

That being said, even simply agreed divorces might not occur this quickly because of the calendar of the courts. The more issues that are contested in your case and the more complicated your marital estate, the longer you can expect the divorce to take.

If you and your spouse aren’t able to come to an agreement about all of the major issues in your divorce, it can take between six months to a year to finalize the divorce. In some instances, it can take even longer than that.

Do I Need a Lawyer For a Contested Divorce in Texas?

It is almost always advisable to have a lawyer representing each spouse during contested divorces. A divorce attorney will be able to help represent your interests during the divorce to ensure that you end up with an outcome that works for you.

It is particularly important to have an attorney of your own if your spouse already has a lawyer. Representing yourself isn’t an easy feat, and going up against an experienced divorce attorney on your own will likely be incredibly challenging.

If you are interested in learning more about DIY divorces, this article looks at getting divorced in Texas without a lawyer.

Understanding the Difference Between Contested and Uncontested Divorces

Uncontested divorces in Texas occur when both spouses agree on all divorce-related issues or in the case of a default divorce. Contested divorces, on the other hand, occur when spouses can't reach an agreement regarding their property, debts, spousal support, child custody, and support, or other pertinent issues.

Probably the most notable difference between these two types of divorces in terms of how they can impact your life is the difference in their financial cost and time cost.

While the filing fees are usually about the same regardless of the type of divorce you're pursuing, the attorney's fees and additional expenses are typically much more expensive in a contested divorce.

Even if you and your spouse start the divorce process in disagreement, it is likely beneficial to both of you (and any children involved in the marriage) to reach your own settlement agreement before taking the case to court.

In Texas, there is a mandatory sixty-day waiting period before a judge can finalize a divorce. The clock on this waiting period begins when the original petition is filed with the court. Though it can feel frustrating for the process to be on hold, this can be a valuable time when you and your spouse can reach an agreement, either by talking it out together or by working through your respective lawyers.

An uncontested divorce will let you begin your post-divorce life sooner than a contested divorce, in most cases, all while keeping more of your money in your pocket. On top of that, it can greatly help reduce the stress and emotional toll that divorce can take on a family.

Mediation can be a great solution if you are having a hard time communicating with your ex about resolving your issues. You can voluntarily undergo mediation, but a court can also order you to go through this process.

If the mediation process is successful, the mediator will present a drafted agreement to the court. If all is in good order in the eyes of the judge, he or she will sign it into the divorce order.

Are You Getting a Contested Divorce in Texas?

Entering a contested divorce isn’t the most pleasant experience, but sometimes it’s necessary. Every divorce is different, and there is no right or wrong answer when it comes to how you deal with your divorce.

That being said, it is definitely advantageous to try and settle things with your spouse out of court if it is at all possible. This can create a better outcome for everyone involved– you, your spouse, and children if you have them. Rather than letting the court decide important issues that will impact your day-to-day life post-divorce, it is usually best for the divorcing couple to find a middle ground they can live with.

If you’re getting divorced in Texas, you’re likely reading up on everything you can find about the topic. After all, the more you know, the better prepared you can be for the process.

At TexasDivorceLaws.org, we work to offer valuable resources to Texans that are dealing with divorce, getting married, or grappling with any situation under the umbrella of family law. If you’re looking for more information about divorce in Texas, be sure to check out our library of divorce articles.

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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