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Divorce

uncontested divorce

An uncontested divorce—also known as an agreed divorce—is a divorce in which the parties are able to agree on all of the issues related to dissolution of their marriage—including the division of property, spousal support, child support, child custody, and child visitation.

Even if the spouses are not able to agree on all of these issues, if they are able to agree on how to handle some or most of these issues, it will reduce the cost and stress of resolving them in the adversarial litigation process.

It is generally not feasible or advisable for spouses to attempt to hire one lawyer to “handle the paperwork” necessary to finalize their divorce. This is because such an arrangement would create a conflict of interest for the lawyer, who would be attempting to represent parties who have conflicting interests in the matter—even if the spouses agree on how to resolve the issues related to the dissolution of their marriage.

It is generally more advisable for the parties to each hire a lawyer and explain to the lawyers that they have agreed on how to resolve the issues related to dissolution of their marriage. One of the lawyers can then create the necessary documents for filing with the court, and the other spouse’s lawyer can review the documents, negotiate any changes, and advise the client-spouse on the legal and other consequences of the documents.

Even such an uncontested or agreed divorce will generally require at least one court appearance (known as a “prove-up”) by the spouses to finalize the divorce.

In Texas, an uncontested divorce, or agreed divorce, is a process where both parties have reached an agreement on all major issues related to the dissolution of their marriage, such as property division, spousal support, child support, custody, and visitation. This type of divorce can be less costly and stressful than a contested divorce, as it avoids the adversarial litigation process. However, it is not recommended for both spouses to hire the same attorney due to potential conflicts of interest. Each spouse should retain their own attorney to ensure their individual interests are represented. One attorney can draft the necessary documents, while the other can review and negotiate any changes, providing legal advice to their client. Despite the agreement between the parties, a court appearance, typically referred to as a 'prove-up,' is still required to finalize the divorce in Texas.


Texas Statutes & Rules

Texas Family Code, Title 1, Subtitle C, Chapter 6, Subchapter A, Section 6.001 - Insupportability
This statute provides a no-fault ground for divorce, which is often used in uncontested divorces in Texas.

A divorce may be granted without regard to fault if the marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

Texas Family Code, Title 1, Subtitle C, Chapter 6, Subchapter D, Section 6.301 - Waiting Period
This statute establishes a mandatory waiting period for divorce, which affects the timeline of an uncontested divorce.

A divorce may not be granted until 60 days after the date the suit was filed. However, a court may waive this waiting period in cases involving family violence.

Texas Family Code, Title 1, Subtitle C, Chapter 6, Subchapter E, Section 6.408 - Agreement Incident to Divorce or Annulment
This statute allows spouses to enter into a binding agreement regarding the terms of their divorce, which is central to an uncontested divorce.

The spouses may enter into a written agreement concerning the division of property and the conservatorship and support of their children. If the court finds the agreement is just and right, it may be approved and set forth in the decree of divorce or annulment.

Texas Family Code, Title 1, Subtitle C, Chapter 6, Subchapter E, Section 6.602 - Mediated Settlement Agreement
This statute provides for the use of mediation in resolving disputes, which can be a tool in reaching an uncontested divorce.

A mediated settlement agreement is binding on the parties if it provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation, is signed by each party to the agreement, and is signed by the party's attorney, if any, who is present at the time the agreement is signed.

Texas Family Code, Title 1, Subtitle C, Chapter 6, Subchapter F, Section 6.701 - Prove Up Hearing
This statute pertains to the finalization of a divorce, including uncontested divorces, through a court hearing.

In an uncontested divorce, a 'prove-up' hearing is required for the court to finalize the divorce. During this hearing, one or both spouses will confirm the essential elements of their agreement on the record, allowing the judge to grant the divorce.

Texas Family Code, Title 1, Subtitle C, Chapter 6, Subchapter C, Section 6.202 - Waiver of Citation
This statute allows for the waiver of formal service of divorce papers, which can simplify the process in an uncontested divorce.

In an uncontested divorce, the respondent may sign a waiver of citation, acknowledging receipt of the divorce petition without formal service. The waiver must be sworn before a notary public who is not an attorney in the suit.

Texas Family Code, Title 1, Subtitle C, Chapter 6, Subchapter C, Section 6.203 - Answer
This statute outlines the requirements for a respondent to file an answer in a divorce proceeding.

The respondent in a divorce suit must file a written answer on or before the Monday following the expiration of 20 days after service, unless the parties have agreed otherwise in writing or the respondent has signed a waiver of citation.

Texas Family Code, Title 1, Subtitle C, Chapter 6, Subchapter C, Section 6.204 - Default Judgment
This statute addresses the possibility of a default judgment in divorce proceedings, which is relevant if one party does not respond or participate.

If a respondent fails to file an answer by the required deadline, the court may render a default judgment granting the divorce and other relief requested by the petitioner. However, in an uncontested divorce, both parties typically participate and agree to the terms, making a default judgment unlikely.

Federal Statutes & Rules

28 U.S.C. § 1332 - Diversity of Citizenship; Amount in Controversy; Costs
This statute is relevant because it outlines the jurisdiction of federal courts in cases where the parties are from different states, which could potentially include divorce proceedings if diversity jurisdiction is met.

28 U.S.C. § 1332 grants federal district courts jurisdiction over civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states. In the context of divorce, this statute is rarely invoked because divorce is typically a matter of state law. However, if a divorce case involves parties from different states and meets the financial threshold, it could theoretically be heard in federal court. It is important to note that federal courts generally defer to state courts in matters of family law, including divorce.

28 U.S.C. § 1738 - State and Territorial Statutes and Judicial Proceedings; Full Faith and Credit
This statute is relevant to uncontested divorces because it requires states to recognize and enforce divorce judgments issued by courts in other states.

28 U.S.C. § 1738, also known as the Full Faith and Credit Clause, mandates that judicial proceedings and judgments of each state shall be given full faith and credit in every other state within the United States. This means that once a divorce decree is finalized in one state, other states are required to recognize it as valid. This is particularly important in uncontested divorces where the parties may reside in or move to different states after the divorce is finalized. The statute ensures that the terms of the divorce, such as property division, spousal support, and child custody arrangements, are upheld across state lines.