Uncontested Divorce

An agreed or uncontested divorce saves a lot of stress, time, and money for both spouses. A divorce is considered “uncontested” if both agree on the terms of the property division and the child custody and support issues (if there are children involved).

At Enos Family Law, our divorce attorneys and legal staff help you keep the legal expenses of your uncontested divorce to a minimum while assuring that all the legal requirements have been met.

If the husband and wife agree on a divorce settlement and there is nothing to fight over, the case is uncontested. If the couple agrees on 47 issues in their divorce but disagree over the car loan, ADD medicine for the son, and who gets to claim the child tax credit, then the case is not agreed and remains contested. The husband and wife (or wife and wife, etc), must agree on every issue for the case to be uncontested.

In uncontested cases, often only one of the spouses hires an attorney to prepare the necessary paperwork. A lawyer can never represent both sides in a divorce. If, for example, the husband hires a lawyer in an uncontested divorce, that lawyer will prepare and file the divorce petition, and draft the waiver of service, and divorce decree. The lawyer may also go to court with the husband to get the divorce approved by the judge.

The wife in this example only needs to read and sign the waiver and the final decree. She may call the husband’s lawyer to ask questions, but she must always bear in mind that the lawyer does not work for her. The wife may want to consult an attorney to make sure the divorce decree is fair to her and truly reflects the settlement the parties have reached.

Once the divorce petition has been filed and the waiver of service signed and notarized, a final divorce decree is prepared and signed by both sides. There is a 60-day waiting period for divorces in Texas, meaning that a divorce cannot be granted until 60 days after a divorce petition is filed. The final step is for the husband or wife and a lawyer to go to court to get the judge to approve the divorce and sign the decree.

In the usual lawsuit, one party files and the other gets served with the suit by a constable or process server. In an uncontested divorce (where saving money is important), the divorce petition is simply mailed to the other spouse along with a waiver of service (also called a waiver of citation). The husband or wife who signs the waiver is merely acknowledging that he or she has received the divorce petition and does not need to be officially served. The waiver also allows the final divorce hearing to be held without that person being present and says a court reporter does not need to record what is said. This language scares some people, but it is routine. If the case is truly uncontested, a person who gets such a waiver should sign it as long as he or she gets to approve and sign the final divorce decree.

The divorce petition is the first document filed in a divorce because it starts the divorce lawsuit. The decree is usually the last document in a divorce. The divorce decree is the official document signed by the judge. The decree divorces the parties, orders how property and debts are divided, and provides for child custody, visitation, support, etc. Even if both spouses have signed the divorce decree, the divorce is not official until the judge signs the divorce decree.

Most judges no longer require personal appearances in court to finalize uncontested divorces. Thanks to Covid, courts now accept affidavits that set forth the facts of the case and provide the information needed to approve a divorce (see outline below).

Some courts allow the submission of an affidavit instead of in-person testimony to finalize a divorce. If the judge of your case requires live testimony, only one of the spouses needs to go to court, although both can be present if they want to. Your lawyer will usually schedule the court appearance and notify the court clerk. Some forms must be filled out, especially if children are involved. When your case is called, you and your lawyer approach the bench where the judge sits. The judge will usually be looking over the divorce decree and waiver while your lawyer asks you a few, simple questions including:

• Your name
• Your spouse’s name
• Texas and county residency (did you live in Texas for six months and this county for 90 days before filing for divorce?)
• Dates of marriage and separation
• Is there a signed waiver of citation?
• Is there a signed divorce decree?
• Is there no hope of reconciliation?
• Are there children? Is the wife pregnant?
• Are you asking the court for a divorce?

If the wife is asking to change her name, testimony is needed that the change is not being done to hide from law enforcement or creditors.

The lawyer may explain the child custody and property division agreement. The judge may ask a few questions, but then he or she will usually say that the divorce is granted. As simple as that, you are divorced. You will need to get a copy of the final, signed divorce decree. If needed, a child support account will need to be set up with the district clerk’s office. A divorce is not final for 30 days and you cannot remarry before that time without court approval.