Is it better to get an uncontested divorce or fight for what you deserve?

Uncontested divorce participants comment after the fact that they liked the idea of an uncontested divorce; but along the way there were some tense discussions that made them feel like because they chose an uncontested divorce they were stuck giving in to whatever demands their spouse wanted to prevent the divorce from becoming contested. Often the basis for the fear of a contested divorce came from myths or misunderstandings of the divorce process. Let’s break down some of these misconceptions and discuss what they mean:

Once you file a Texas uncontested divorce you have to start over for a contested divorce:

This is not at all true. There is no distinction between filing uncontested and contested divorces. An uncontested divorce can become contested along the way. The process stays the same except the parties (and their attorneys) will get more involved in the litigation process. It will likely take longer for a contested divorce to resolve itself; but you do not go to the bottom of the pile of divorces before the court. There is no penalty from the courts.

It will cost more money to have a contested divorce in Texas:

This is probably true. If you have to pay a divorce lawyer to work through the stages of litigation then it will almost certainly become more expensive than if you hired a divorce attorney to walk you through the uncontested process or tried your hand at it yourself. How expensive it will be depends on how contested things get.

However, the amount you pay in attorney’s fees to defend your parental or property rights may be considerably less than the value of property you may lose or time with your children you may forfeit by giving in to your spouse’s demands out of fear of the attorney’s fees. I’ve seen people give up six figures in retirement assets they could have received in a divorce because they didn’t want to spend a few thousand dollars on attorney’s fees.

It will take longer to have a Texas contested divorce:

Maybe. A contested divorce can take a long time if there are a lot of contested issues and the parties are far apart on those issues. However, some contested divorces resolve themselves within the same time frame as an uncontested divorce. Texas requires most divorces to delay sixty days before the judge can grant the divorce. That may be enough time to negotiate a settlement of the contested issues.

Things will be harder on me with a contested divorce in Texas:

This is sort of a vague statement but I hear it frequently. If you are disagreeing about property or child issues along the way in your uncontested divorce then things have already become difficult. I’m not always sure what people mean by this statement.

Furthermore, if you end up accepting a low-ball offer on the property division or a parenting plan that deprives you of a meaningful relationship with your children then I’m not so sure that battling out those issues with lawyers is worse than accepting a really bad deal on your own.

If you fight out your Texas divorce the judge could give you nothing:

Highly unlikely. It is extremely rare when a parent fights for greater opportunity to be a parent and the judge gives that parent no access to the children. That only happens when the parent is particularly dangerous to the children (for example, has abused the children or exposed them to dangerous situations). It is also extremely rare for a judge to give one spouse all the marital property. I can’t say for sure; but I doubt that ever happened in Texas unless a valid prenup made it that way.

In Texas, absent a prenup or postnup agreement, each spouse retains ownership of any property he or she owned before the marriage plus any gifts or inherited property received during the marriage. This is separate property under the law.

The marital property is typically all community property which is subject to a “just and right division” which is rarely something other than a 50/50 split unless the parties have agreed to a different division. These are rules with exceptions but they are rare exceptions.

Chances are good that if your spouse is trying to get you to agree to a deal that is obviously unfair it will be worse than what you could get at trial.

If I contest the Texas divorce a judge will make all the decisions:

Not necessarily. Most contested divorces result in some form of settlement instead of a trial. The parties and their lawyers may reach an agreement through informal negotiations or a settlement reached through mediation. In either case, the parties remain in control of settling their issues. The judge (or jury) is the last option to resolve your divorce.

Contesting a Texas divorce will make the situation public:

Not really. Most court filings are publicly available and most court proceeding are open to the public. It is unlikely anybody unrelated to your divorce will show up at hearings or pour over your file. Courtrooms are not full of journalists and spectators. There may be other people in the room but they are likely lawyers and other people with business before the court. They are more concerned with getting their turn before the judge so they can leave than your situation.

If your case is already high profile then it will probably stay that way but if there aren’t journalists calling you about your divorce now they probably won’t start calling if you contest the terms of your divorce.

In a contested divorce all of my dirty laundry will be exposed:

It is possible. Maybe even probable. In the course of negotiations, mediation, or even trial, both spouses will likely throw jabs at each other. It happens. The lawyers, the judge, the mediator, or anybody else who overhears has likely heard the same dirty laundry. It is usually not an issue for the court. However, sometimes certain issues can create problems for you. You should discuss those issues with your attorney and let your attorney work around them.

Signing a settlement agreement
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