Divorce can be one of the most difficult and painful events in the life of a family — for both the parents and the children. For more than two decades, divorce attorney Ellen Schutz has passionately guided clients through the challenges in divorce. She works with them to understand the specifics of their situation, understand their goals and develop a strategy to obtain a fair resolution.

Schedule a consultation with a divorce attorney today: Simply complete our online contact form to reach our office.

Filing For Divorce In Texas
In Texas, a divorce typically is based on insupportability of the marriage — also known as “no fault” divorce — although a divorce also can be granted on specific grounds, such as abandonment, adultery or cruelty. However, a divorce will not be granted until two issues are determined:

  • Conservatorship (child custody and parental access) taking into account the “best interests” of the children.
  • Division of the community property (the property acquired during the marriage, and identifying each party’s separate property or property acquired prior to the marriage or during the marriage by gift, devise or inheritance).

Initiating the Divorce Proceeding
A divorce proceeding is initiated by either spouse’s filing of an Original Petition of Divorce with the court. This may be a short document or a lengthy document depending upon the individual circumstances and the relief requested. The case will then be assigned to a specific court that will preside over the proceeding until concluded.

For example, in Dallas, Collin and Denton Counties, a divorce case will be assigned to one of the courts that handles family law matters.

Before filing for divorce, at least one of the parties must be a Texas resident for at least six (6) months and a resident of the county where he or she files for divorce for at least the preceding ninety (90) days. A divorce cannot be granted until at least sixty (60) days have elapsed from the filing of the divorce petition. If there are contested issues that the parties cannot agree upon, that period can become substantially longer.

Contested and Uncontested Divorces

The Uncontested Divorce

An uncontested divorce is one in which the spouses agree to the:

  • Divorce
  • Child custody arrangement
  • Division of the marital property
  • Division of their liabilities

In an uncontested divorce, one party files the petition to initiate the process. Then the parties wait sixty (60) days, a Final Decree of Divorce is drafted during this period. It is the document that sets forth all relevant agreements that the parties have entered into. The parties sign the Final Decree and then one party or both will go to court to finalize the decree during what is referred to as a “Prove-up.” One or both parties ask the Judge to sign the Decree and grant the divorce, and leave the courthouse divorced.

The Contested Divorce
A contested divorce, however, is a different matter and is contested because the parties are unable to agree on the terms of the divorce. These types of divorces are far more complex, require more time and are usually more costly. Each party typically hires a divorce attorney. Depending upon the nature and amount of the marital property and level of acrimony, the divorce can take substantially longer than sixty (60) days to finalize.

Temporary Orders
In a contested divorce, the parties do not agree on child custody issues and/or issues of property distribution. Many times it is necessary to go to Court and have a hearing to determine Temporary Orders, or orders that will stay in effect during the pendency of the divorce.

Securing the appropriate temporary orders is critical. Temporary orders govern all aspects of the divorce proceeding between the date the petition is filed and the date the divorce is granted, such as:

  • Custody and support of the children
  • Living arrangements of the children
  • Visitation of the children
  • Payment of bills
  • Possession and use of the marital assets — including the family home
  • Payment of attorney’s fees
  • Social studies
  • Psychological evaluations
  • Other procedural matters

In some cases, a temporary restraining order (TRO) may be warranted to prevent harassment or prevent the sale or transfer of marital property.

The Discovery Process
After the divorce petition has been filed, the discovery process begins. This is the process where the parties learn facts about their marriage and the nature and extent of their marital property. Discovery is critical in a contested divorce because it affords the parties an opportunity to discover the extent of their marital property and learn information necessary to evaluate the case. It also is important for discovering, locating, recovering, valuing and dividing marital property. The discovery process can be a lengthy and expensive process that cannot be completed overnight. It takes time to thoroughly evaluate the situation and gather the necessary information.

Discovery may be in the form of written questions directed to the parties through their lawyers. This is referred to as Interrogatories. It also may be in the form of requests for copies of documents, such as deeds, vehicle and boat titles, bank account records, stocks and bonds, farm and ranch records, business records, tax returns, credit card statements, telephone records and other relevant documents, Requests for Production of Documents and Other Tangible Items. Discovery also may be in the form of oral testimony in a deposition. A Sworn Inventory and Appraisement listing the value of the parties’ marital property and debts is prepared using the information collected during the discovery process.

Concluding the Divorce Proceeding
Once the discovery process is completed, the divorce proceeding is resolved either through an agreed divorce settlement, mediation or by trial. The trial may be before a jury or the judge alone. If the case is tried, the court will hear the evidence, and a jury verdict (or judge’s ruling) will be rendered that determines the child custody issue and the property division. The standard for deciding the custody issue is what is in the “best interests” of the children. The standard for dividing marital property and debts is what is “just and right.” The practical application of these standards will depend on the facts and circumstances of each case.

The court will then enter the final divorce decree, which will establish custody and visitation rights, define and divide the marital property and liabilities, and assess attorney’s fees and expenses. The final divorce decree also may provide for post-divorce spousal support (alimony). If the parties have not previously reached an agreement regarding alimony, the court may award it in certain limited situations based upon need, ability to pay and many factors such as the duration of the marriage.

Like all final judgments entered by a court, a final divorce decree may be appealed. Even an agreed-upon final divorce decree may be modified if one spouse later learns that the other spouse misrepresented the nature and amount of marital property during the negotiations, or if child custody and support arrangements are no longer suitable due to a substantial change in circumstances.

Facing Divorce? How We Can Help
If you are contemplating divorce or your spouse has already filed for divorce, call divorce attorney Ellen Schutz. She is dedicated to creatively resolving your divorce-related issues and securing the final decree as quickly and efficiently as possible. As an experienced trial lawyer, however, she is prepared to go to war at the courthouse if need be.

Making sure that the “best interests” of the children are properly addressed and a “just and right” division of the marital property is achieved is important to us. Because family matters.

Call For a Phone Consultation
Questions about contested divorce vs. uncontested divorce? Do you want to talk to an attorney about your divorce options? Please contact us to discuss your legal issue. The firm provides phone consultations at 214-340-8515, or you can send an e-mail. Se habla español. The firm is centrally located in Dallas.