Updated on July 19, 2024
Your divorce will be considered contested if you must turn to the court to intervene on your behalf regarding one or more elements of your divorce.
While it is generally preferable to pursue an uncontested divorce in which you and your soon-to-be-ex can find common ground on all divorce terms, there are times when a contested divorce can better serve your and your children’s interests. If you believe a contested divorce will be better for you, discuss your case with a Killeen divorce attorney right away.
The Primary Elements of Divorce
While every divorce is unique, every divorce also addresses the same essential elements (as applicable):
Division of marital property (called community property in Texas)
Child custody arrangements (called conservatorship in Texas)
Child support
Spousal maintenance (commonly called alimony)
Each of these terms can play an essential role in your and your children’s future.
Uncontested Divorces Are Generally Preferable
There are many sound reasons why the vast majority of divorces in Texas are uncontested:
It is a less expensive route.
The divorce can generally be finalized more quickly.
The process tends to be less of an emotional rollercoaster.
It can spare the children additional pain and anxiety.
It allows the spouses to make primary decisions about their own futures – instead of allowing a judge who knows very little about them to do so.
There are many reasons to recommend an uncontested divorce over a contested divorce, but it’s not always the right approach. Contact a skilled Killeen divorce attorney to learn which kind of divorce will be better to protect your rights.
If Your Spouse Is Gunning for a Fight
If your divorcing spouse is more interested in hurting you than in protecting their own financial and parental rights, it’s a pretty good sign that they will not be engaging in meaningful negotiations any time soon. These situations can be a setup for disaster.
If your spouse simply isn’t interested in turning the heat down on your divorce, you could find yourself with uncountable hours of negotiations ahead of you – along with the cost and effort of mediation – with nothing to show for it. In such a case, it’s almost always advantageous to cut your losses early on and head directly to court.
Keep an eye out for these signs that your soon-to-be ex is not invested in streamlining your divorce in any capacity:
● They are extremely unreasonable – even when it comes to their own best interests.
● They turn every attempt at negotiations into a battle.
● They refuse to budge on even the most mundane issues.
● They show no signs of wanting to put the divorce behind them.
While going to court can be intimidating, your focused Killeen divorce attorney will ensure that you’re well prepared for what’s to come.
If Your Spouse Caused Your Marriage to Fail
Under Texas family law, neither spouse has to prove that the other caused their marriage to fail, and most divorcing couples do not go this route. The majority of divorces in the state are no fault, which means they are based on insupportability – or irreconcilable differences.
However, Texas also grants divorces that are based on grounds of fault, which include adultery and cruelty. For example, if your spouse was having an extramarital affair during your marriage and your marriage failed as a result, you can seek a divorce that is based on their adultery.
If you are interested in a fault-based divorce, there are some important considerations to keep in mind:
Your divorce will be contested, which means the terms will be determined in court.
Your divorce will likely be more time-consuming, expensive, and contentious.
You will need to prove your spouse’s fault, such as proving they had a sexual relationship with someone other than you, which can be challenging.
The benefits of a fault-based divorce include the peace of mind that comes from formally identifying the reason your marriage failed, which can be comforting. Additionally, the matter of your spouse’s fault could directly affect your divorce terms.
Deciding whether proceeding with a fault-based divorce makes sense in your situation will come down to balancing the potential benefits against the disadvantages and considering how much emotional weight you attach to the matter. In other words, this is a very personal decision, but your dedicated divorce attorney has the keen legal insight to help you make the right choice.
You Believe Your Spouse Is Hiding Assets
The property that you and your spouse acquired together as a married couple – regardless of whose name is on it or who made the purchase – is considered marital property, which is to be divided in a just and right manner upon divorce. To manage such a division, however, you need to know the full extent of your marital property.
Some divorces are straightforward when it comes to financial matters. For example, if you own two cars and a family home together and you each earn an income and have your own retirement accounts, crunching the numbers and coming up with a fair division isn’t likely to be especially complicated.
However, property division can become very complicated very quickly, especially in the following situations:
If your divorce involves high assets
If you own a business
If you have complicated financial holdings
When assigning value to an asset or assets is a concern
If your spouse took care of all the finances and you know little about them
If your spouse takes it upon himself or herself to hide assets or to divest your marriage of assets to keep them from you
If you believe your spouse is hiding assets or is engaging in other underhanded financial practices, taking the matter before the court is likely your best option.
Separate Assets
Any assets that either of you owned at the time of your marriage and kept separate throughout your marriage are considered the original owner’s separate property. However, intermingling your separate and marital assets can confuse the issue. Further, if a separate asset increases in value during the marriage, the amount of the increase is likely to be considered a marital asset.
Fraud on the Community Estate
Both spouses are required to share all relevant financial information with one another at the time of divorce, but the more complex the involved finances are, the more wiggle room there is for fudging the numbers in an effort to skew the results. Consider these common techniques for committing fraud on the community estate:
Hiding assets, such as in offshore accounts or in cryptocurrency that is difficult to trace
Undervaluing assets
Giving assets away – or “gifting” them to relatives only to have them returned after the divorce is finalized
Tying up assets in one’s business without increasing its value
Spending down marital assets by purchasing high-ticket items
If your spouse is far more involved in your family’s finances than you are, it puts them in a better position to pull a financial fast one on you.
Forensic Accounting
If the values of specific assets are in doubt or if succinctly identifying the full scope of your marital assets proves challenging, you’ll likely need to hire forensic accounting to ensure you have the information you need to make primary decisions regarding your financial rights.
If you and your seasoned Killeen divorce attorney have reason to believe that your spouse is engaging in fraud on your marital estate, it may be wise to seek a contested divorce at trial.
Texas courts take a wide range of factors, including financial fraud, into account when making determinations about financial divorce terms, such as the division of marital property. Addressing the matter of financial fraud in a contested divorce can work to your financial advantage, making the additional cost and inconvenience of going to court less burdensome.
If You Strongly Disagree with Your Divorcing Spouse’s Child Custody Demands
The court makes all decisions related to child custody with the children's best interest in mind. Except in extreme situations, courts tend to find that children do best when they can spend time with both parents.
If you strongly believe that your children will be better off living primarily with you and having a visitation schedule with their other parent due to issues related to their emotional or physical well-being, you and your children may be better served by taking the matter before the judge.
When making child custody arrangements, courts take best-interest factors like the following into careful consideration:
The children’s ages and developmental stages
The children’s emotional, medical, physical, and educational needs, including any special needs
Each parent’s ability to effectively address these needs
Each parent’s age and overall mental and physical health
The degree to which each parent has been involved in raising the children to date
The degree to which each parent is committed to supporting the other’s ongoing relationship with the children and to effective co-parenting with the other
How well the status quo is working for the children, which refers to how well their current living situation supports them in terms of their home life, their schooling, and their community
Whether addiction on the part of either parent is a concern
Whether domestic violence, child abuse, or child neglect is an issue
The distance the parents live from one another
Any other factors the court considers relevant to the case at hand
If you have grave concerns about your soon-to-be ex’s ability to care for your children, it’s a matter that you should take up with the court. For example, if you have reason to believe that their new love interest poses a danger to your children, it’s a matter you shouldn’t ignore. Consider these other reasons a judge may limit your ex’s parenting time:
You have reason to believe that your divorcing spouse’s drinking or drug use could endanger your children.
You have reason to believe that your divorcing spouse is abusive toward or negligent regarding your children.
You have reason to believe that your divorcing spouse is engaging in parental alienation with your children.
If the court shares your concern, it can limit visitation and impose requirements, such as supervision during visits.
The Prenup You Signed Isn’t Valid
Many prenuptial agreements are legally valid, but this isn’t always true. These contractual agreements often address the financial terms of divorce, including the division of marital property and spousal maintenance. When an agreement is determined to be enforceable, these divorce terms are resolved under the outlined contractual details, making quick work of divorce negotiations.
However, there are instances when prenuptial agreements are found invalid, which generally means heading to court to resolve the terms fairly. If your marriage started with a prenuptial agreement, your divorce should start with consulting with a Killeen divorce attorney who will help you understand if the prenup will be upheld.
The following common situations can invalidate a prenup in Texas:
If the contract wasn’t signed by both spouses
If the contract wasn’t in writing
If either party signed the contract under duress or coercion, which translates to not signing voluntarily
If the prenuptial agreement was unconscionable – or seriously lopsided
If either party failed to provide a full financial disclosure and the other didn’t waive their right to a full financial disclosure in writing and didn’t otherwise have access to the information
Rather than accept the less-than-fair terms outlined in an invalid prenuptial agreement, you are generally advised to resolve the matter in court.
You Are Entitled to Alimony
In many divorces, alimony does not play a role. If your soon-to-be-ex refuses to address the issue of alimony and you believe you are entitled to alimony as a result of the sacrifices you made during your marriage – in support of your spouse’s financial success – it is likely a matter you should address with the court.
Discuss Your Concerns with an Experienced Killeen Divorce Attorney Today
Divorce is difficult, and if you have one or more issues to contest, it is that much more complicated. However, obtaining terms that support your rights is too important not to give it your best effort.
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a dedicated divorce attorney who has the experience and integrity to help you obtain divorce terms that work for you and your children. For more information, please do not hesitate to contact us online or call us at (254) 781-4222 today.