The decision to get divorced is rarely an easy one to make. Even when you are at peace with your choice, you may be dreading going through the legal process. This is particularly true when you and your spouse cannot agree on the terms of your divorce.
In Texas, if you cannot agree on issues like property division, child custody, child support, and spousal maintenance, then you are in a contested divorce. In a contested divorce, you may need a court to make a decision on these issues if you cannot reach a settlement agreement with your soon-to-be ex. Our Austin contested divorce lawyers have significant experience handling high-conflict divorces and negotiating agreements to resolve cases.
At the Law Office of Jason Wright, we understand that it isn’t always possible to have an amicable divorce. Our goal is to help you reach the best possible outcome for your case, whether that means working out an agreement or taking your case to trial. Contact our law firm today to schedule a consultation with an Austin divorce attorney.
What Is a Contested Divorce?
In Texas, a divorce is considered “contested” when the spouses cannot reach an agreement on one or more issues in their case. Unlike an uncontested divorce, where both parties agree to all divorce terms, a contested divorce may require going to court to have a judge decide these matters. No matter how small the issue, if the parties do not agree, only a judge can decide the issue for them.
The exact reason for a contested divorce will vary from couple to couple. Common issues in contested divorces include:
- Division of marital property and debt
- Child custody (conservatorship)
- Parenting time and possession schedules
- Child support
- Spousal maintenance (alimony)
- Ownership of a business
- Hidden assets or financial misconduct in high-net worth divorces
Even if spouses can’t agree on these issues initially, it is always possible to work out an agreement at any point in the divorce process. This can be through negotiation with lawyers or via formal mediation. If you ultimately cannot reach an agreement, then a judge will make a decision based on the Texas Family Code.
Few people would choose to go through a contested divorce if given a choice. A contested divorce takes more time and can be more stressful and expensive compared to an agreed divorce. That being said, if you simply cannot reach an agreement with your spouse, then a contested divorce may be your only option.
There are many different reasons why a couple may not be able to come to an agreement. Below, our Texas divorce lawyers break down some reasons why our clients might go through a contested divorce.
Grounds for Divorce
In Texas, you can pursue a no-fault or a fault divorce. Most divorces are filed on a non-fault basis (insupportability), which means that the marriage has become insupportable due to conflict with no reasonable expectation of reconciliation. A fault divorce is when one spouse alleges that the other did something wrong, such as adultery, cruelty, abandonment, living apart for at least three years, or confinement in a mental hospital.
Both no-fault and fault divorces can be contested. While a fault divorce will almost certainly be contested, it isn’t uncommon for a no-fault divorce to be contested. Even if you aren’t contending that your spouse did something wrong, you might still go through a contested divorce if you cannot agree on all of the issues in your divorce.
Property Division
Texas is a community property state. This means that property acquired during the course of a marriage is presumed to belong equally to both spouses as marital property. This community property is then split in a way that is “just and right” during a divorce.
Property owned before marriage, inherited property, and gifted during the marriage may be considered separate property. Any separate property will not be subject to property division during a Texas divorce. However, a spouse seeking to claim separate property must have clear and convincing evidence that the property is separately owned.
Many spouses go through a contested divorce because they cannot agree about how their assets and debts should be divided. They may also disagree about whether certain property should be considered community property or separate property. Other issues may also arise, such as allegations that one spouse has wasted community property, committed fraud, or spent community property on an affair partner.
In high-net worth divorces, the spouses may disagree about more complicated issues, such as the value of certain business interests or real estate holdings. Figuring out how to account for things like complex compensation structures can also be challenging. Unless the couple had a prenuptial or postnuptial agreement, a high-net worth may be contested.
Conservatorship
In Texas, child custody is referred to as conservatorship and possession. When a couple shares minor children, contested divorce proceedings may be more likely when neither spouse is willing to give up time with their kids (possession) or decision-making authority over important issues ( conservatorship)
Texas courts make custody decisions based on the best interests of the child. This includes an analysis of factors such as:
- The child’s physical and emotional needs
- The child’s preferences (if they are aged 12 or older)
- Each parent’s ability to provide stability
- Each parent’s history of involvement in their child’s life
- Both parents’ ability to cooperate when it comes to co-parenting
- Safety concerns
When it comes to managing conservatorship (legal custody), the presumption under the law is that parents be named Joint Managing Conservators to share decision-making authority when possible. If necessary, a court may appoint one parent as the sole managing conservator for all issues (such as the child’s residence, healthcare, education, and religion) or for one or more issues.
When it comes to possession/parenting time, Texas has a Standard Possession Order that outlines default visitation schedules. In contested divorces, parents may seek a customized arrangement due to conflicts over things like:
- Holiday schedules
- Travel rights
- Virtual communication
- Geographic restrictions
- Modifications to accommodate work schedules
Our Austin child custody lawyers carefully craft parenting schedules tailored to our clients’ needs. In many cases, we can negotiate a parenting plan to avoid going to court. If that isn’t possible, we will go to trial to protect your parental rights.
Child Support
Child support in Texas is usually calculated using statutory guidelines. These determinations are made based on the paying parent’s net resources and the number of children they are supporting.
However, in a contested divorce, a spouse may argue that the guideline support amount is inappropriate due to issues such as:
- Healthcare expenses
- Intentional underemployment
- Income calculation for self-employed individuals
- Bonuses, commissions, and stock options
- The additional costs of raising a child with special needs
Courts can deviate from guideline support when it is justified by the unique circumstances of a case. Our law firm will advocate for a child support order that reflects the actual circumstances of your case.
Spousal Maintenance
Texas has strict standards for spousal maintenance (alimony). Spousal support is not automatic. Instead, the spouse seeking support must demonstrate that they have an inability to meet their minimum reasonable needs and a basis for seeking support. This may include:
- A marriage lasting at least 10 years
- Family violence within 2 years of filing for divorce
- Disability preventing employment
- Responsibility for a disabled child preventing employment to cover reasonable needs
Disputes often arise over eligibility for spousal maintenance, the amount of support, and the duration of payments. Our team can help you pursue or defend against a claim for spousal maintenance in a smart way.
Strategic Legal Representation for Contested Divorces in Texas
Contested divorces can be more stressful, costly, and time-consuming compared to uncontested divorces. In some cases, a contested divorce is the only option. If you can’t come to an agreement with your soon-to-be ex about any aspect of your divorce, our Austin divorce attorneys can help.
The Law Office of Jason Wright represents clients in the greater Austin area on a range of divorce and family law matters. We are highly skilled at negotiating agreements between divorcing spouses, but are ready, willing, and able to take a divorce case to trial to protect your rights. To learn more or to schedule a consultation with an Austin contested divorce lawyer, give us a call at 512-706-9662 or fill out our online contact form.