When it comes to getting a divorce, many people are surprised to find that severing ties with a partner is not a one stop shop. From mediation to uncontested, all the way to litigation, the type of divorce people choose varies greatly from relationship to relationship, and is dependent on a wide variety of individual circumstances. By far the most well-known, however, is a contested divorce.
A contested divorce happens when the parties cannot agree on the terms of the split, forcing them to lawyer up and take the matter to court. Since break-ups are rarely easy, this method is pretty common in the divorce arena, and if it’s one you’re forced to enter, a contested divorce not one you want to go into with a subpar attorney.
Here, at the Neal Ashmore Family Law Group, our lawyers have over a century’s worth of combined litigation experience. Through the years, we’ve worked hard to build a reputation for excellence both in and out of the courtroom, and take pride in the trust our clients place in us. During disagreements, we know when to push, and when it’s better to pull back. How to recognize a good compromise, and when to answer with stronger, fiercer arguments. If you are thinking of getting a contested divorce in Texas, here’s how your Neal Ashmore attorney will help you navigate this emotional and stressful legal minefield.
Initiating a Contested Divorce
When getting a contested divorce, the first thing your attorney will help you do, is draft an Original Petition of Divorce. This petition (or “complaint,” as it’s sometimes called) gives the court notice of your intentions, and formally initiates the divorce process. In it, your attorney will identify the parties to the suit, any children born to the marriage, custody proposals, lists of separate and community property, and will also request that a hearing be scheduled. In addition, if you’re filing on fault-based claims, your petition should state the reasons supporting these grounds.
Fault and No-Fault Divorce
In a fault-based divorce, one side is largely to blame for the marriage falling apart. Most states have simplified their divorce processes, by only allowing couples to file on no-fault ground. Texas, however, is one of the few states that still recognizes fault-based claims. Grounds for a fault divorce can include cruelty, abandonment, and a felony criminal conviction, but most often, they center around infidelity. Since Texas judges are permitted to use fault when dividing up marital property, these can be important elements to consider when drafting your petition.
However, even though Texas allows fault-based divorces, it should be noted that they can be costly, time-consuming, and often do not yield the desired results. If you are thinking about initiating on fault-based grounds, an attorney at Neal Ashmore can help you identify the biggest hurtles to your claim, and whether or not it will be cost-effective to pursue. If it is, we will incorporate fault into your complaint, and make sure to design our legal strategy accordingly.
Serving Divorce Papers
After your petition is finalized, signed, and filed with your county clerk, the complaint will then need to be properly served to your spouse. “Service,” is the formal process of letting your spouse know you’ve initiated divorce proceedings. To do this, you provide them with copies of the divorce petition, along with all other documents you filed with the court.
There are several different ways to satisfy proper service, but the most common is through personal service (having someone hand the documents to your spouse, personally). This cannot be done by you or your attorney, but rather, a private service processor, sheriff, or constable. If personal service isn’t an option for your situation, your Neal Ashmore attorney will discuss other acceptable methods of delivery.
Unless your spouse fills out and signs either a service waiver form, or original answer form, service is required to officially kick off a contested divorce.
Responding to a Petition for Divorce
Once your spouse has been properly served and notified, he or she has twenty days to respond. Usually this is accomplished by filing an answer with the court, but it can also be satisfied by initiating a counter claim.
In legal speak, an answer is exactly what it sounds like: a reply. It’s a chance for your spouse to address the terms listed in your divorce petition, usually by making a general denial. If there are fault allegations, however, it’s possible your spouse might file a counter-claim against you. A counter-claim can also be used to address specific points of your complaint, instead of making a general denial. Either way, answers and counter-claims serve the same basic function of making it clear that the respondent wants to participate in the divorce, and not simply comply with all the terms.
If you were the one served with a petition, and need to file an answer, the attorneys at Neal Ashmore are well equipped to handle cases on either side of the aisle. And for individuals with pending complaints, it’s critical you don’t delay, since doing so could put you in danger of default. In a default divorce, the court will proceed without you, usually by agreeing to all the terms your spouse listed in his or her complaint. Naturally, it’s rarely in a person’s best interest to let that happen, so a timely reply is essential to making sure your needs are being fairly considered during divorce.
Contested Divorce Trial
Once petitions and answers have been filed, a judge will schedule a hearing. In preparation for trial, your attorney will gather information to strengthen your arguments, a process known as discovery. At some point during this time, settlement offers might be discussed, and you’ll have the chance to engage in mitigation.
Mitigation is a confidential, non-binding negotiation process between you and your partner, overseen by a neutral third-party. While there’s no obligation to reach an agreement in mediation, Neal Ashmore encourages all of its clients to try this method of resolution, as it can save time and money, and gives individuals more flexibility in determining the outcome of their divorce.
If a settlement agreement can’t be reached, the case will head to court. During a contested divorce, a judge will hear arguments from both sides regarding the terms listed. The complexity of things like property division and child custody will determine how long this process takes, but after it’s all done, the judge will make a decree of divorce, which is final and binding.
Contested Divorce Attorneys in Texas
While all of this might sound straightforward, contested divorces are emotional, stressful, and are never easy. However, at Neal Ashmore, we understand the importance and gravity of a final divorce decree, and never give less than our all in fighting for our clients’ interests. If you have found yourself in a contested divorce situation, and need an attorney you can rely on, we’re here to help. Call us today at (972) 436-8000, or schedule a consultation online. By choosing Neal Ashmore, you can give yourself the peace of mind in knowing there is no one better to guide you through the complex minefield of a contested divorce.