The Basics of a Divorce in Austin


One of the most common questions an Austin Divorce Attorney is asked is, “What's the difference between a contested and an uncontested divorce?” An uncontested divorce is a divorce in which the parties have reached an agreement on all issues, including spousal support, visitation, child support and division of property and debt. A contested divorce is a divorce in which the parties are not in agreement on all issues. Even if the parties are in agreement on all but one issue, the divorce is considered contested.

Most uncontested divorces are no-fault. This means that the neither party is placing blame for the divorce on the other party. The plaintiff in an uncontested divorce will typically plead that the marriage has become unsupportable due to personality conflicts or other differences that make it impossible for the marriage to survive. In an uncontested divorce, the parties must reduce their agreement to writing, sign it, and file it with the court. An uncontested divorce can be finalized at the end of the 60-day waiting period.

A contested divorce takes much longer and is much more expensive than an uncontested divorce. A contested divorce usually involves “discovery” which is the process whereby each party is given the opportunity to examine the other party's evidence in an effort to narrow the issues in the case. After the discovery period has ended, there will be a hearing where they judge or jury will decide the case.

A plaintiff in a contested divorce may plead no-fault and fault grounds as the basis for the divorce. Fault grounds recognized under the Texas Family Code are:

  • Cruelty;
  • Adultery;
  • Conviction of a Felony;
  • Abandonment;
  • Living Apart; and
  • Confinement in a Mental Hospital.

In order to obtain a divorce, whether contested or uncontested, certain residency requirements must be met. Texas divorce law first requires that either the plaintiff or the defendant have been a resident of the State of Texas for at least six months before the divorce complaint is filed. Additionally, either party must have resided in the county in which the complaint for divorce is filed for at least 90 days prior to the commencement of the case.

Regardless of whether an Austin divorce is contested or uncontested, the first step in the divorce process is filing the petition or complaint for divorce. The petition must be filed in county where the opposing spouse (the defendant) resides. After the petition has been filed, it must be served on the defendant by the sheriff or a private process server. Once the complaint has been served, the defendant must file an answer within a specified time period. If the defendant fails to file an answer, Texas law prohibits the entry of a default judgment in favor of the plaintiff.

If the plaintiff files an answer, the discovery period begins to run. The parties may conduct depositions and engage in all other legal discovery methods, such as requesting the other side to answer questions, known as interrogatories, or to produce documents related to the issues in the case.

As you can see, divorce is a very complex process and whether your divorce is contested or uncontested, the only way to protect your interests is to be represented by an experienced Austin divorce attorney. An Austin divorce lawyer will review your case, recommend an appropriate course of action, and work closely with you as your case progresses to ensure that you get the best possible outcome under the circumstances.

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