Contested vs. Uncontested

Family Law Articles

Whether your case is considered contested or uncontested depends on whether you and your spouse have reached agreements on all of the issues. Uncontested divorces are less expensive and less stressful and, if children are involved, the parents can usually keep their coparenting relationship intact. While an uncontested divorce is always the goal, most cases are not uncontested in the beginning stages. That does not mean, however, that it will not become uncontested at some point during the process or that your case is doomed to be contentious and litigious. All cases start out contested and it is our goal to get it to uncontested in a strategically smart and efficient manner.

Does your Spouse Understand that Divorce is Inevitable?

Until a spouse understands that divorce is inevitable negotiations are not taken seriously. Sometimes divorce has come up so many times that a spouse just does not realize that this time it is going to happen. In other situations, a spouse believes incorrectly that they can prevent a divorce by not participating or by simply saying “NO” .In these cases it is usually best to just begin the process because negotiations on the other issues will not be taken seriously until a spouse believes it is inevitable.

How will Custody (“conservatorship” ) be Shared?

Custody(“conservatorship”)can be very hotly debated, often because of fear that a parent will be eliminated from a child’s life and the parent’s lack of trust in the other parent now that they are divorcing. If this concern arises, it may be helpful for each parent to hire an experienced custody attorney and learn more about creative options and possible ways of eliminating this fear and lack of trust at a time when those emotions often cloud negotiations. The Collaborative Divorce process might also be considered because is a particularly good method for helping the parents create a plan together that encourages coparenting within boundaries. Sometimes, though, the parents simply needed more knowledge about the options and creative solutions that are possible.

How will Parenting Rights be Divided or Shared?

There are probably more parenting rights than either spouse knows, and those rights must be divided and/or shared. Sometimes they think they have reached agreements just to find out they did not know what they needed to reach agreements about. There are also many ways to share the parenting rights that might make sense. While a spouse may be familiar with some of those options, rarely do they know all the options. This is an area where an experienced divorce attorney makes a big difference. Rather than getting into a “winner takes all ”stand off, each parent meeting with an experienced divorce attorney in a strategy session and becoming educated on the more creative options will help the spouses reach solutions in an amicable manner. Also, if the parents decide to have a Collaborative Divorce the parents can work together, with the assistance of the Collaborative team to reach creative solutions.

How will Parenting Time (“Possession and Access”) be Divided/Shared?

How much time a parent will have with their child is a very emotional topic. Sometimes just learning about the possibilities and envisioning how those possibilities work will settle the negative emotions and permit a creative solution that “fits” for your family. Hiring an experienced divorce attorney makes a real difference. Meeting with an experienced divorce attorney for a strategy session can keep the divorce amicable and lead to solutions aimed at eliminating the need for litigation, both now and in the future.

How will Child Support be Handled?

Child support includes monthly living expenses for the child, health and dental insurance premiums and allocating unreimbursed healthcare costs. This is an often misunderstood and emotional issue. Both parents want the child to be taken care of financially, but paying money to the other parent is not how they prefer to doit. While Texas law provides a method for courts to calculate child support, there are a number of other ways to accomplish supporting a child that may work better for the parents. An experienced divorce attorney knows how to put together a plan for support that the courts will accept. These creative solutions require more cooperation but often make more sense if both parties are cooperating in an amicable manner. Certainly, the Collaborative Divorce process is an excellent method for reaching agreement on a creative solution.

How will the Marital Assets be Divided?

While reaching an agreement on how property will be divided can be difficult, the difficulty is increased by lack of knowledge, by one or both spouses, as to what property will be divided. There are things the law considers property that people do not consider property. Furthermore, whether something is separate property or marital property can be confusing. While separate property is not divided in a divorce, there may be reimbursement claims between the marital estates when separate property is involved. An experienced divorce attorney can explain these issues in a strategy session and assist with negotiating a settlement on the more complex issues.

How will the Marital Debts be Divided?

Debts have to be divided too. While debts are often easier to identify, how they will be handled can be more complex. Sometimes bankruptcy is likely for one or both parties and must be considered in the division. Division of debts also involves the rights of third-party creditors. To illustrate how even simple debt, like credit cards, can be more complex than expected, consider the issues that arise if a couple has decided that they want to split the credit card balances equally. Is either spouse going to continue to use the cards? How is interest that continues to accumulate going to be handled? What happens if a payment is not made? The credit card company has legal rights to collection that may be different from how the parties have agreed to divide the debt sand these rights are not affected by divorce agreement. An experienced divorce attorney can explain these rights, and make sure that the solution takes into consideration how the third-party creditor will handle the situation if a debt does not get paid. Protecting your credit is important in the debt division process.

How will Taxation Issues be Handled?

This issue is often overlooked entirely. Consider some of the most common reasons taxation issues must be resolved: What if either spouse is audited by the IRS after the divorce? What if that audit results in an amount owed or a refund? What if either spouse needs to amend a tax return from during the marriage? How are the tax returns for the year of divorce going to be handled? What if there is a balance owed to the IRS already, or there is a refund expected? Who is going to claim the children as dependents? Who gets to take advantage of deductions for things like the house, businesses, depreciation, etc.? While an experienced divorce attorney can help you identify the concerns that might arise, it may even be wise to meet with a CPA to go over these types of questions before a settlement is negotiated.