Divorce is the dissolution of the marriage contract, a definition that makes it sound cut and dry. However, divorce is an emotional journey with a wide range of complications thrown in for good measure. While the vast majority of divorces in the State of Texas are settled out of court, some make their way to court and, in so doing, become contested divorces.
Contested divorces tend to be more costly, more time-consuming, and more stressful than uncontested divorces, but sometimes, the court’s intervention is required to help ensure that one’s rights are well protected. If you’re facing a divorce, it’s time to consult with an experienced Austin divorce attorney.
Understanding Divorce Terms
In order to finalize your divorce, you and your divorcing spouse must resolve all the applicable divorce terms. Any one of these terms can become a sticking point, and because the manner in which they’re resolved will directly affect your future, it’s important to afford each of them the attention they deserve.
The Division of Marital Property
Over the course of your marriage, you, your spouse, and both of you together almost certainly acquired assets and property, and all of these – with very few exceptions – are considered marital property.
In Texas, the division of marital property must be fair in relation to the specific circumstances involved. While this can mean an equal division of all assets, it doesn’t always work out that way. The court has considerable discretion on the matter of property division.
Separate Property
The assets that either spouse owned prior to marriage and kept separate during the marriage are separate assets that remain the property of the original owner.
However, it’s important to understand that the state’s starting position is that all assets are marital assets. As such, the spouse who claims an asset is separate must prove that it qualifies as such. In a marriage, marital and separate assets are often commingled, which can erode the separate nature of specific properties.
Complications
The fair division of marital property has the potential to be the most hotly contested divorce term, and there is a range of complications that often factor in:
Marriages that involve high assets, business ownership, or both are much more challenging when it comes to property division.
Identifying marital assets and assessing their value can be difficult in and of itself.
Dividing marital assets upon divorce can be very emotional, making it more difficult to resolve.
Even when an asset is firmly identified as separate, any increase in its value over the course of the marriage will very likely be considered marital. Retirement accounts are a prime example.
Child Custody
Child custody is another divorce term that has the potential to make a divorce contested. Child custody addresses how you and your ex will address the primary concerns of who will make important parenting decisions and how you will split your time with your children.
Legal Custody
Legal custody guides decision-making for major parenting issues like the following:
The medical care your children receive
The school or daycare your children attend
The religious education your children receive
The extracurricular activities your children participate in
Parents can share legal custody, or one parent can assume sole legal custody. In some cases, one parent has license to break a tie when the couple’s authentic efforts to reach a consensus fail. Another option is dividing this decision-making authority between both parents according to the kind of decision that needs to be made.
Physical Custody
Physical custody is called parenting time in Texas, and it determines each parent’s schedule with their children. If you and your spouse are able to resolve this matter between yourselves, you can devise any parenting time schedule that works for you. However, if your divorce is contested and you need the court’s intervention regarding physical custody, you can expect one of its standard schedules.
It’s important to note that Texas courts defer to the best interests of the involved children, and this begins with the presumption that children are better off when they spend a considerable amount of time with each parent. While one parent may become the primary custodial parent and have the children for the majority of overnights, Texas has several 50/50 scheduling options for exes who split their parenting time evenly.
Courts turn to the following best interest factors when making child custody decisions in contested divorces:
Each child’s age and unique needs, including any special needs
Each parent’s ability to effectively address these needs
Each parent’s desire and ability to co-parent effectively
Each parent’s desire and ability to support the other’s relationship with the children
The preference of each child who is thought to be old enough and mature enough to voice their opinion on the matter
The degree to which each parent has been actively involved in raising the children so far
How well the children are doing in relation to the status quo, which refers to their current home, school, and community
Any other factors the court considers relevant to the child custody case at hand
Child custody is a critical divorce term for every parent, and if your divorcing spouse refuses to see reason on the matter, proceeding to court with a contested divorce may be your best option.
Child Support
Texas has a careful child support calculation process that considers specific factors. As a result, you might think child support won’t make its way to court, but extenuating circumstances often call for the court’s discretion. A parent who hides income, gets paid under the table to avoid child support, or is underemployed or unemployed for the same reason will garner the court’s attention.
Both parents are responsible for supporting their children, and child support helps balance this responsibility between them. This obligation is an important financial concern that speaks to your children’s best interests, and it can require the court’s guidance.
Alimony
If divorce leaves either spouse without the financial resources to continue supporting themselves at a level similar to the one achieved during marriage – and the other has the means to help – alimony may be awarded. Many exes have reservations about paying alimony and are willing to fight tooth and nail to avoid it. In other words, it’s not uncommon for alimony to land a divorce in court.
A range of factors go into alimony, or spousal maintenance, determinations, but it is most likely to be awarded after longer marriages in which one spouse sacrificed their own earning potential to care for the home and children, thus bolstering the other’s career.
When a Divorce Is Contested
When a divorce is contested, it goes to court, which means that it is very likely to take longer and cost more to finalize. To begin, contested divorces must proceed in accordance with the court’s docket, which you should expect to be extremely crowded.
Further, you and your practiced Austin divorce attorney will need to be very well prepared for court, which generally translates to additional legal expenses. However, protecting your rights is paramount. Sometimes, the best means of achieving this is by taking your divorce to court.
Occasionally, a divorcing couple will take every term to the mat because the drama enthralls them. This practice significantly increases the chance that the divorce will be contested, but it doesn’t alter the fact that they could have obtained an uncontested divorce if they’d been willing to see reason.
In most instances, however, couples go to court because one spouse or both spouses have serious concerns about their parental or financial rights being trampled, which is a very valid reason.
Fault-Based Divorce
Texas is not one of the states in the country that no longer allows fault-based divorce. While most divorces in Texas are no fault, you can seek a divorce based on your spouse’s fault. Fault-based divorces are contested divorces by default because the accused spouse is very unlikely to agree to the other’s claim of fault.
The Effect of Fault on Your Divorce Terms
Obtaining a fault-based divorce can affect how your terms are resolved, but it’s important to know that your spouse’s wrongdoing can also affect your divorce terms in a no-fault divorce. For example, if your spouse engages in adultery and wastes marital funds in the process, it can directly affect how your assets are divided.
Recognized Forms of Fault
In Texas, no-fault divorces are based on insupportability, which aligns with what many people think of as irreconcilable differences. When a Texas divorce is fault based, it must be predicated on one of the following offenses:
Adultery
Cruelty
Abuse or domestic violence
Felony conviction
Mental incapacitation
The task of proving fault in a divorce lies with the spouse making the claim, and it tends to be challenging. There is no denying that obtaining a fault-based divorce is a major endeavor, but many of those who do find that it supports their own healing and makes moving into their brightest futures more accessible.
Protecting Your Rights
If you are facing a divorce, you undoubtedly are eager to put the matter behind you as quickly as possible. Because a contested divorce typically requires a longer process, you may be determined to avoid it, which is a prudent starting position.
However, your rights hang in the balance, and if your soon-to-be ex isn’t going to give an inch, regardless of how committed you are to the negotiation process, the most efficient and most effective path forward may be through the court system. There are certain situations that are best left to the court’s discretion.
Your Spouse Is Abusive or Bullies You
If your spouse chooses to abuse or bully you rather than engage in reasonable negotiations, it’s likely in your best interest to obtain a contested divorce. Abusers are generally good at what they do, and attempting to negotiate terms that will affect you and your children’s futures under these adverse conditions is exceptionally risky – not to mention unfair to you.
Your Spouse Has a Bone to Pick
If your divorcing spouse is more interested in making a point than in resolving the terms that are holding up your divorce, you are unlikely to reach them via open communication and fair negotiations. The stress of divorce leaves some people unable to cope, and if your spouse is one of these people, you may need to consider a contested divorce.
Your Spouse Isn’t Being Transparent about Financials
Financial matters are a major part of any divorce, and if your divorcing spouse is not forthcoming with information, it can leave you at a distinct disadvantage. Regardless of the form of financial fraud used, your spouse’s trickery in relation to marital finances must be rooted out and addressed if your financial rights are to be upheld.
If this is the difficult situation you find yourself in, you will probably need to engage in forensic accounting and will likely need the court to order a fair division of assets. A spouse who will stoop to this level is unlikely to do the right thing in response to negotiations or mediation.
Reach Out to an Experienced Austin Divorce Attorney Today
If you are facing a contested divorce in Austin, you need skilled legal guidance in your corner from the start. Brett Pritchard at The Law Office of Brett H. Pritchard in Austin is a focused divorce attorney whose fierce advocacy for his clients serves them well.
The terms of your divorce are important, so please don’t delay reaching out to contact us online or call us at (254) 781-4222 to schedule your FREE consultation and learn more about what we can do to help you today.