Uncontested Divorce in Dallas and Fort Worth By Adam Kielich, Attorney & Counselor Disclaimer: The following content is for informational purposes only. It is general information about Texas divorces and is not legal advice specific to your situation and should not be a substitute for receiving legal advice about your individual situation. An uncontested divorce, sometimes called a no-contest divorce or agreed divorce, is a divorce in which the parties reach an agreement on the terms of their divorce rather fighting over the property division and child issues in a contested divorce. There is no special procedures for an uncontested divorce under the Texas Family Code; however, if the parties can reach a reasonable settlement then it is often a great way for the parties to avoid the aggravation and cost of a contested divorce. When is an Uncontested Divorce in Dallas or Fort Worth a Good Idea? 1. The issues in the divorce are simple 2. The divorce does not dissolve into a destructive fight 3. The children do not get stuck in the middle of a nasty custody battle 4. Attorney fees are usually lower and usually can be done as a flat fee 5. The property can be divided based upon what is fair for both spouses with an expensive process 6. A custody agreement has a better chance of producing a healthy co-parenting relationship7. The divorce is usually faster than a contested divorce 8. Nobody tries to win the divorce Reasons Why You Might Want an Attorney for an Uncontested Divorce 1. You want to include a non-standard possession order for your children. The standard possession order includes the typical 1-3-5 weekend schedule but some people prefer a 50/50 schedule or some other arrangement. Theres nothing wrong with these arrangements and judges will approve them. However, when you go off the standard language you must be careful to adequately explain the arrangement and include all the necessary details to make the order enforceable, if there are problems in the future, and to clearly explain the roles of each parent. The clearer the language in the decree, the less likelihood you will have to spend time and money down the road fighting over a modification of the order. Many self-written possession orders end up in modification where each parent may pay several thousand dollars to file suit to modify the language to create a working custody arrangement. 2. You have a lot of assets but not a lot of disagreement. Property division is often a source of disagreement in a divorce and one of the main reasons why people hire attorneys to help with their divorce. You may have reached an agreement with your soon-to-be-ex-spouse that resolves your property disagreement. That is a good thing. However, the property division needs to be included in the divorce decree. You need to make sure the property is accurately described and divided in the decree so each side can protect their own property. This is a good idea to prevent future disagreement over assets and to prevent future creditors of your soon-to-be-ex from coming after your assets. 3. You have a lot of debts. Debt is an increasing problem, whether it is student loan debt, mortgages, car loans, credit cards or payday loans. Although Texas is a community property state, there is no such thing as a community debt. No matter how a divorce divides responsibility for payment of debts, the creditor can always come after whoever incurred the debt. That can create problems down the road for either spouse. Divorce is a significant cause of bankruptcy because people walk away with more debt than they have income to pay it. It is important to carefully deal with the debts in the divorce decree to protect each party from the others creditors. Like assets, once the judge signs off on a property division it is nearly impossible to change it. 4. Your child has unique or special needs. Your child may have medical conditions that require additional health care or particular adjustments. Like the above issues, dealing with those special needs should be carefully designed and explained in your Texas divorce decree to ensure the needs are properly met. It is important that the decree language carefully define the roles and responsibilities of each parent. There may also be particular health insurance and child support arrangements to include to ensure care is available for your child. These issues also need to be addressed. When conflict arises down the road, the parents will want to be able to turn back to the decree for guidance on how to proceed. If the decree cannot provide the necessary guidance then the parents may have to file suit to modify the decree and make the situation more difficult to deal with. 5. You dont trust your ability to draft a Texas divorce decree. Drafting legal documents is an art form and you very reasonably may be uncertain about your ability to take something you found online, in a how-to kit, or through a form-building website like LegalZoom, and produce an enforceable divorce decree. Theres no shame in recognizing that drafting court orders is not your area of expertise. Form-building websites these days are charging almost as much asa lawyer to give you a mad libs-style court order. You might as well get help from somebody who has expertise with drafting divorce decrees who will help you through the judicial process. Making Sure the Divorce is Filed in the Right County Uncontested divorces, and divorces in general, must be filed in a court that has jurisdiction to hear the divorce. The parties cannot agree to give a court jurisdiction if the Texas constitution and related Texas statutes do not grant that court authority to hear the case or adjudicate the divorce between the parties. In addition to ensuring the uncontested divorce is filed with the right courts, the parties must make sure the right county has been selected to file their uncontested divorce.Its particularly important to confirm the address of each party through official county property records, especially when the parties live in cities on the edge of one of the counties. The north Texas region (what we used to call DFW or the metroplex) is increasingly seamless as you move from one town to the next and you wont know you have crossed county lines unless you happen to cross a major street or highway. There are many suburbs that split county lines across Tarrant County and the neighboring county. It is very easy to live on a street where one end is in Tarrant County and the other end is in another county. Grapevine is a good example of this. Grapevine spans Tarrant County, Denton County and Dallas County and two people living in Grapevine could be in different counties and not even realize it. The same is true for other border towns like Southlake, Trophy Club, Keller and so forth. For people who own homes it is easier to know the county where you reside if you pay property taxes directly to the county but if you rent a house or apartment then you may not have a good idea. Uncontested Divorce and Waivers of Service In an uncontested divorce in Fort Worth or Dallas it makes very little sense to spend the $80 to serve the respondent in a divorce suit where the respondent is not going to contest the terms of the divorce. However, the Texas Rules of Civil Procedure require a petitioner (or plaintiff) to a lawsuit to serve process on a respondent (or defendant) to allow that party to learn about the suit and respond to the allegations in the petition. In the alternative, the rules permit the responding party to file a waiver of service waiving the service requirement to avoid having to waste money on a process server. In an uncontested divorce, it usually makes sense to ask the respondent to complete the waiver of service to avoid wasting money and as a sign of good faith that the parties are cooperating towards an agreed divorce decree. A waiver of service can include a waiver of several other issues beyond waiver of service of the petition. In the majority of cases the waiver of service will include a waiver of service requirements for any future hearing as well as allowing the judge to sign a divorce decree without the respondents signature or presence at the hearing. This allows the petitioner to take an agreed divorce decree to a prove up hearing without having to first give notice to the respondent or require the respondent to attend. That makes the uncontested divorce process very easy. Less liberal waivers may waive service of the petition but not provide these other waivers or may provide some of the waivers. For example, the respondent may waive service of the petition and the right to notice but not waive the requirement that the respondent consent to the divorce decree. That preserves the respondents ability to ensure the divorce decree presented to the judge is an agreed divorce decree that the two spouses have agreed to. When Uncontested Divorces Don't Work out the Way You Hoped The more complex or unique the issues in your divorce, the greater the risk that your divorce decree will result in future problems. As you may expect, I always believe people are better off obtaining legal advice for a divorce than not, but very simple divorces may turn out ok without legal counsel. The same is rarely true for uncontested divorces (or contested divorces) where there are complex or unique issues. Todays post will discuss some of the reasons why. A poorly drafted divorce decree may delay your divorce and end up costing you more money.If your divorce decree fails to adequately deal with any child custody, child support, or property division issues, the judge may refuse to grant your divorce until you present a proposed divorce decree that adequately covers each issue the Texas Family Code requires and sufficiently deals with these issues. The judge in your divorce cannot offer you legal advice from the bench so you will walk away with an unsigned decree and no advice how to fix your problems. That means you will likely have to hire an attorney to draft the decree for you. You may end up paying more for hourly work to draft the decree than the flat rate you could have paid for everything for a flat fee uncontested divorce. A poorly drafted divorce decree may lock you in to a very unpleasant property division.Under the Texas Family Code, a Texas court has very little room to modify a property division granted in a divorce. If you make bad decisions about how to divide assets and responsibilities for divorces then you could end up stuck with a deal that could ruin you financially. You could end up giving up too large of a share of a retirement account or receiving too little of your spouses account. You may saddle yourself with responsibilities to pay on debts that do not belong to you. Worst of all, you could end up letting your spouse off the hook for debts he or she should pay, leaving you to pay the whole thing or suffer the consequences of a creditor chasing down unpaid bills. Even a well-intended and fair property division could be misrepresented in the decree and lock you in to something different from what you intended. When problems arise with the debts or you reach retirement and realize you gave up more than you could afford then it will be entirely too late to do anything about it. If you find out after the divorce that your spouse had hid away certain assets then you may be able to include those in your decree with additional litigation but that will be more money to spend on a more complex lawsuit than what you might have spent hiring an attorney to analyze the property division and research for other assets. A poorly drafted divorce decree may lock you in to a bad child support arrangement.It is common in uncontested divorces for the spouses to agree to no child support or less child support than what the Texas Family Code requires under its minimum child support guidelines. Sometimes it is reasonable or at least understandable why the parties agreed to deal with child support as they have. However, the parties must be careful about how child support is described in the decree to ensure an enforceable child support order has been established and that the amount correctly reflects the obligation of the parent paying child support. What usually happens in these situations is that the husband will agree to everything else in the divorce as long as no or very little child support is required. If the decree misrepresents the agreed-to amount or schedule then the father can end up paying far more than agreed (and maybe more than the law requires) due to poor drafting. On the other hand, the mother may find herself accepting an unreasonably low amount of child support or end up with a support order that is difficult to enforce due to ambiguous or confusing language. This can also be a problem for medical support where medical support is not properly assigned between the spouses. Under the Texas Family Code a parent typically cannot modify a child support order for at least one year and even when it can be modified, the modification is often contentious and expensive. A poorly drafted divorce decree may result in a conflict-ridden custody arrangement.Along with property division language, this is probably the area where divorce decree language can be most confused and result in problems. Often spouses attempt to draft a unique custody arrangement with their own visitation schedule and may try to write their own list of rights and responsibilities for each parent. Usually things are fine as long as the parents agree on everything. It doesnt matter what the decree says because the parents are following their agreement that they think they accurately described in the decree. However, at some point the parents are likely to disagree about something. The parenting relationship takes a stumble and they look at the decree to guide them. Well if the decree does not offer guidance on how to deal with the situation then the parties are left trying to figure it out on their own, which usually means more disagreement and more discord with the children stuck in the middle. The whole parenting relationship can quickly descend into a bad place. The option to clean up the divorce decrees language is more litigation through a modification suit. Which, again, is expensive and contentious. If things have been allowed to backslide so far that the parenting relationship is dysfunctional then the whole custody arrangement may have to be rebuilt, which means starting over from scratch and trying to build something positive in a sea of negativity. Here is an example of how this goes wrong: A lady, who agreed to let me tell her story, was divorced approximately six years ago in an uncontested divorce in Tarrant County. Her and her husband did not have much in the way of assets and they had a child but agreed about everything with the child. A friend who had been divorced twice gave them some advice that they chose to adopt. The friend told them that they could just take a basic divorce decree and do everything themselves and as long as they agreed about everything then they could do whatever they wanted without having to pay for a lawyer. So the husband got one of these form divorce decrees online and filled in their information. They included the standard possession order for custody, no child support and a property division that basically said whatever each spouse had in their name or in their possession belonged to that spouse. The divorce was granted. What the spouses really intended in their divorce was a 50/50 custody arrangement with no child support order but they would share costs in everything for their child. There was one credit card in the ex-wifes name from the marriage that they had used for all their credit purposes. They had put a significant amount of debt on the card and the agreement for the divorce was supposed to be that they would equally pay on it each month although the divorce decree said nothing of this arrangement. Things were good until they werent. After a couple years the ex-husbands job was relocated to another part of the state. His living expenses increased and it was no longer reasonable for them to split time with the child because the ex-husband could not take the child to school without spending his whole day driving to the school and back. So they agreed the ex-wife would keep the child during the week and the ex-husband would take most weekends and most of the summer. But then the drive became exhausting and he showed up less frequently. His payments on the credit card and for various expenses for the child were sporadic and the ex-wife had to constantly harp about getting the money out of him. The situation continued to deteriorate to the point that he was no longer making any payments on the credit card because he insisted he could not afford it and pay to drive hours to see his child. The added cost of caring for her child most of the time and the full credit card payment was breaking her financially, too. Then she started dialing for lawyers. The divorce decree had left her with very few options. The credit card was nowhere to be found in the decree. The custody arrangement gave her no options to require the ex-husband to take possession of the child or to pay child support. Even worse, the required medical support language was so mangled there was very little opportunity to enforce the ex-husbands obligation to pay part of the hundreds of dollars of medical bills that the ex-wife had recently paid herself because he insisted he couldnt afford it. What was once a reasonably healthy parenting relationship had fallen apart without the benefit of the safety net of the divorce decree. She was understandably despondent about her situation. Months of expensive litigation and settlement efforts eventually resulted in a new, workable custody arrangement, child support and after significant work a portion of the credit card debt paid off. It could have been a lot worse but both ended up spending an enormous sum of money on what was basically a few paragraphs in the divorce decree and the parenting relationship will probably never recover. Learn more at kielichlawfirm.com The Kielich Law Firm 2205 Martin Dr., Ste. 200-K Bedford, Texas 76021 817.857.1123