Uncontested Divorce by Agreement Explained
Family Law Attorneys Serving McKinney & Surrounding Areas
Our seasoned legal team at The Willingham Law Firm, PC proudly offers comprehensive legal services for clients interested in filing for uncontested divorces. Although uncontested divorce is significantly easier than a contested divorce, clients often come to us because they want to learn more about what to expect from the legal process. Here is what you need to be aware of if you are considering leaving your spouse and want to file for an uncontested divorce.
What to Expect in an Uncontested Divorce
To begin the uncontested divorce process, a party must first file an Original Petition for Divorce and pay the required fees associated with the filing. This document is what initiates the divorce process. It results in the divorce action being assigned a specific court and cause number, under which all subsequent documents or pleadings will be filed.
All Original Petitions for Divorce must include the following information:
- The name of the parties
- The dates of marriage and separation
- Information relating to any children born during the marriage
- Specific requests relating to child issues, division of property and any other relief requested
Mandatory Waiting Period
Texas has a mandatory waiting period from the time an Original Petition for Divorce is filed to when the divorce can be granted by a court. So even if both parties are in total agreement on all divorce issues (including property and children), they must wait 60 days from the date the Original Petition is filed. This mandatory waiting period can be waived in very specific instances, but the majority of cases must wait until the 61st day after filing to finalize an agreed divorce.
In a contested divorce, the party filing for divorce must have the other party served with the divorce paperwork (the Original Petition for Divorce and any notices of hearings) by a private process server or law enforcement officer. The uncontested divorce process does away with this service requirement. Instead, the responding party only needs to file a document called a “Waiver of Service.” This document includes several key assertions that the court requires.
Requirements of a Waiver of Service
The Waiver of Service is a notarized document that:
- Acknowledges receipt of the Original Petition for Divorce
- Includes specific provisions protecting interests in children and property
- Provides the court with the party’s contact information (including physical address, phone number, and email address)
The purpose of this document is to show the court that the responding party is aware a divorce suit is pending, that the responding party has received and reviewed the Original Petition for Divorce. If the party does not want to be personally served, they are providing the court with their contact information and permission for the divorce to be finalized without the responding party being personally present. The waiver must be notarized to prove to the court the responding party personally signed it after verifying their identity.
Final Decree of Divorce
The next document that will need to be drafted and signed by the parties is the Final Decree of Divorce. While the Original Petition for Divorce requests certain relief, the Final Decree of Divorce is the document that the judge will sign and includes all agreements reached in the divorce.
Since Texas is a community property state, even the shortest of marriages accrue community property. Almost all judges require that Final Divorce Decrees divide assets and debts by specifically awarding those items, even if the parties kept their accounts separate during the marriage and nothing really needs to be divided:
- Property Division: Any and all property acquired during the marriage will be divided in the Final Decree of Divorce. This includes real property, personal property, furnishings, jewelry, retirement accounts, cash on hand, etc. The items will be listed and awarded to the spouses in the decree. The decree can also include language about the sale of property or how proceeds/funds will be divided as part of the divorce. Any property that a spouse owned prior to marriage will be confirmed as that spouse’s separate property.
Some amicable parties may be reluctant to include specific child provisions because they want to co-parent by agreement after divorce rather than following specific schedules or rules. While the Texas family courts applaud a couple’s desire to informally co-parent, a Final Decree of Divorce must include a specific possession schedule and language about child support and medical support. The parties are free to disregard the specific provisions and co-parent as they see fit, but the Decree must include certain language for the divorce to be finalized:
- Child Custody Matters: The Final Decree of Divorce will need to address certain provisions relating to children of the marriage. This will include rights and duties, access and possession, child support, medical support, and other miscellaneous provisions, such as passports or electronic communication.
- Other Agreements: The Final Decree of Divorce may have other miscellaneous provisions, such as injunctions, post-divorce spousal support, change of name, tax language, or other items. Each Final Decree of Divorce is specifically drafted for a divorcing couple so no two Final Decrees are the same.
Once the Final Decree of Divorce has been drafted and signed off on by the parties, it will need to be filed with the assigned court. This document does not need to be notarized by both spouses who will need to sign it.
Other documents may need to be drafted and filed depending on the case. These may include:
- Qualified Domestic Relations Order: Divides retirement accounts.
- Special Warranty Deed & Deed of Trust to Secure Assumption: Addresses title and ownership of real property that is awarded to a spouse in the divorce.
- Child Support Order & Medical Support Order: These are signed by the judge and filed with the state to effectuate payment of child support and medical support coverage.
- BVS Form: Includes basic identifying details about the case and is filed with the Bureau of Vital Statistics.
There may be other forms that are required, so please reach out to a licensed Texas attorney at The Willingham Law Firm, PC to confirm what documents are needed for your specific case.
The Prove Up
Once all the appropriate documents have been filed with the court, the filing party will need to appear in front of the assigned judge to do what is called a prove up.
This is a short testimony to the court affirming and asserting:
- The provisions of the Final Decree of Divorce
- That no one is pregnant,
- That all children and property of the marriage have been properly addressed within the decree
- That divorce is requested
The party may also testify about a requested name change being done to revert to a maiden name (rather than for nefarious purposes such as avoidance of criminal prosecution). The prove up is short and painless. Most courts only require one party to appear, but double-check with your legal team because different courts have different requirements. Once the judge has heard the prove up testimony, they will approve the agreements, grant the divorce, and sign the Final Decree of Divorce.
When the Divorce Goes into Effect
After the judge has signed the decree, a certified copy may be obtained for purposes of changing a party’s name or effectuating change in beneficiaries or other property concerns. The divorce will be effective upon the date of the judge signing the Final Decree. It is important to remember that there is a mandatory 30-day period from the date the divorce is granted until a new marriage may be entered into, so if you are hoping to enter into a new marriage while your divorce is pending, make sure to discuss that with your legal counsel.
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