Making the decision to divorce a spouse is never an easy choice to make. Divorce involves many different moving parts and may include children, a shared home, and financial assets. While some divorces can turn sour if spouses can’t agree on a suitable compromise of terms, others can be almost entirely amicable.
This is the case when it comes to filing a divorce by agreement. Having a good understanding of this process and the pros and cons that go along with it is crucial to ensuring your divorce proceedings in Texas go as smoothly as possible. Let’s examine more about this option and whether it might be right for you.
Divorce by Agreement
Deciding how to divide and manage concerns over children, shared financial assets, and properties can quickly lead to points of contention for those involved. It can drag out the proceedings over months or even years, putting stress on everyone involved. When couples are able to divorce on good terms, they may be able to speed up the process.
Also known as divorce by mutual agreement or an uncontested divorce, divorce by agreement refers to divorce proceedings where both parties agree to end the marriage amicably. While divorcing by agreement may sound ideal, it is not always an option in complex proceedings. In order to divorce by agreement, Texas law requires many specifications that must first be met.
In Texas, those who meet the following criteria are eligible for a divorce by agreement:
- Both spouses agree to end the marriage.
- Neither spouse has an ongoing bankruptcy case.
- Minor children are not involved.
- The spouses do not own property together and do not have retirement benefits to divide.
- Neither spouse is seeking alimony.
What if Children Are Involved?
Even if minor children are involved, separating spouses may be able to divorce by agreement if the following additional requirements are met:
- Both spouses agree on all divorce-related issues, including child custody and child support.
- There are no pending court orders for custody or support already in place.
Aside from meeting the requirements to divorce by agreement, it’s important to note that Texas has a mandatory waiting period from when an original petition for divorce is filed to when a court can grant the divorce.
Even if both parties agree on all divorce-related issues, they must wait 60 days from the date the petition is filed. While this mandatory waiting period can be waived in very specific instances, the vast majority of couples must wait until the 61st day after filing for divorce to finalize a decree in Texas.
Advantages of Divorce by Agreement
The advantages of divorcing by agreement include allowing separating spouses the opportunity to end their marriage quietly and respectfully. Divorcing by agreement also provides for a quicker resolution because very few or no proceedings are required to ensure the spouses are on the same page.
In addition to this, the overall costs of divorce by agreement are fairly low. Both parties will be able to keep any mutually agreed upon assets that could otherwise be a point of contention in a contested divorce.
Each Spouse Should Have an Attorney
Regardless of calm feelings toward one another, it is still advisable that each party engage their own divorce lawyer to perform a basic evaluation of the circumstances. In addition, an ethical divorce attorney will not engage in the conflict of interest that results from trying to advise both parties in a Texas divorce case.
In high-net-worth divorce cases, there may be large financial assets, companies, or other complicated interests that must be properly valued prior to division. This can get very detailed and may require the assistance of not only an attorney but also a forensic accountant. Again, the idea is to protect your best interests and those of any children.
In some cases, spouses have discovered that the other is withholding information about hidden assets or other factors that could destroy the chances of an uncontested divorce. Any family law attorney will be quick to share stories of how a peaceful dissolution of marriage turned rocky after an initial investigation.
When a Divorce by Agreement is Not Possible
Despite the advantages of divorce by agreement, there are also situations in which this type of divorce would not be possible. For instance, if spouses are unable to effectively communicate with each other without fighting, having an uncontested divorce would be incredibly difficult. This is the same for couples who may be in abusive relationships or those with major imbalances of power, as these situations can often lead to one spouse having an unfair advantage over the other.
Similarly, if one or both spouses are keen on keeping certain items of property, it is unlikely that a divorce by agreement would be possible, as issues involving assets are not often easily resolved without mediation and/or court proceedings. In these scenarios, a contested divorce should be considered.
The Uncontested Divorce by Agreement Process in Detail
After filing the original petition for divorce and paying the associated fees, the divorce case will be entered into the court documents and receive a case number. Any additional filings will be placed under this number, and it must be referenced in all materials. This ensures everything is presented to the court and considered before the final decree is issued.
Petitions must include the names of both parties involved, dates of marriage and separation, information about any children born to the marriage, property division requests, and other pertinent details.
Divorce Paperwork
When couples cannot agree, or one spouse has grounds to divorce the other, it’s considered a contested divorce. This involves the standard requirement where the person filing has the other spouse served with papers. However, with an uncontested divorce by agreement, this requirement is waived.
The person who would normally be served papers can file a waiver of service with the court, which has several important requirements, including:
- The responding party acknowledges receipt of the original petition for divorce.
- The waiver will have specific provisions outlining the respondent’s interests in children and property and how those interests are protected.
- The respondent must provide the court with their physical address, mailing address (if different from the physical), phone number, and email address.
- The waiver of service must be notarized by an appropriate authority.
The waiver of service is meant to provide proof to the court that the non-filing party in a divorce is aware of the pending suit, has received and reviewed the divorce petition, and does not want to be served with papers. It also provides contact information for the court and indicates whether the responding party wishes to be present when the divorce is finalized.
The purpose of this document is to show the court that the responding party is aware a divorce lawsuit is pending, that the responding party has received and reviewed the original petition for divorce, that party does not want to be personally served, they are providing the court with their contact information and directs a court whether the divorce can be finalized without the responding party being personally present.
Dividing Assets and Providing for the Children’s Needs
Any divorce proceeding will require terms describing how property and finances will be divided and how child custody and support will be handled. It’s in your best interests as a couple divorcing by agreement to work this out between yourselves and present your requests to the court. Otherwise, a family court judge who doesn’t know your situation will make the decision for you.
Texas is a community property state, meaning that any assets the couple acquired during the marriage are eligible for division equally between the spouses. If one partner owned something, such as a home or heirloom furniture, prior to the marriage, they can present proof that it should be considered separate property they receive in the settlement. You should clearly outline exactly how you plan to divide the assets to have the best chance of that becoming part of the final decree.
You must include a specific schedule of visitation and language concerning child support provisions. Even if you are comfortable with co-parenting in a more relaxed way after the divorce is completed, the family court will require a clear schedule and payment amounts to be in writing and entered as part of the final decree.
Final Divorce Decree
All your agreements and arrangements will be included in the final divorce decree. Consider this document as a guide for moving forward after you’ve divided your lives. Ideally, it’s written in a way you can both live with and you won’t need to go back for modifications, which require court action. The best way to ensure you have a good decree is to rely on your own divorce attorney, who will look out for your best interests and negotiate on your behalf.
Even amicable spouses should take this step to keep the conversations logical and on track, avoiding delays based on emotional responses. When you have your compromise in place, you are ready to sign the final decree of divorce and file it with the family court.
Prove Up
When everything is filed, the couple will need to appear before the assigned judge for a final review, called a prove up. You will each testify that you affirm the conditions set forth in your decree, that neither party is pregnant, and that all concerns about children and property have been settled. One or both parties can potentially waive this appearance and let their attorneys appear in their place.
Partners who wish to change their legal names at this time can request this at the prove up. They may need to present proof that it is not for the purpose of avoiding criminal prosecution. The prove up hearing is short and may involve only the filing party if the other spouse filed an appropriate waiver.
When everything is complete to the judge’s satisfaction, they will issue the final decree of divorce and the divorce is considered effective immediately. There is a mandatory 30-day waiting period before either partner can remarry.
Speak With Our Brazoria County Divorce Attorneys Today
Whether you’re going through a divorce by agreement or a contested divorce, making the decision to separate from a partner is incredibly difficult. Even if you and your soon-to-be-ex agree on virtually everything, it is still wise to consult with an experienced Texas divorce attorney to ensure all your needs are met once the divorce is finalized.
At Terry & Roberts, our Pearland divorce attorneys will provide you with clear, caring, and practical legal guidance to help you through the process. Contact our office today to schedule a consultation to see how we can best help you and your family.