There are several different types of divorce in Texas that you should know. You can learn more by checking out our guide here.
Contrary to popular belief, divorce rates across America have been dropping steadily. Perhaps more interestingly, couples who choose to divorce today have more options than ever before.
Understanding the types of divorce available can help couples make better, more informed decisions about their futures. Here’s what you need to know about divorce in Texas right now.
Types of Divorce: An Overview
There are six basic types of divorce available to Texans.
- Litigated divorce
- Mediated divorce
- Collaborative divorce
- Uncontested divorce
- Default divorce
- Arbitrated divorce
Each type is named after the primary process or method that couples use to negotiate their separation. In addition, Texas divorces may be “fault” or “no-fault” situations.
To understand these options, it is helpful to first review the question of fault under Texas law and then consider each process individually.
Fault and Divorce
Decades ago, proving fault was an integral part of getting a divorce. Without proof that it was “justified,” courts might not allow a divorce to go through.
Today, this standard no longer applies. It is not necessary to lay the blame for a marriage ending at the feet of either party. Couples routinely apply for and receive “no-fault” divorces.
Either spouse can allege fault if desired, but doing so tends to be a double-edged sword. First, the alleging spouse must understand that the responsibility for proving fault lies with them. This can potentially make the divorce process take longer and increase the cost.
Second, “fault” cannot be a generic sense of blame. The only legal grounds on which to allege fault in a divorce in Texas are:
- Domestic violence or abuse
- Physical or mental cruelty
- Abandonment (for at least one year)
- Mental incapacitation
- A felony conviction
The accusing party must prove their allegations for fault to matter and the accused party has the right to contest the claim.
That said, proving fault can be beneficial in some cases. Judges may award wronged parties more assets, more custody of shared children, or higher alimony. If any of the legal fault criteria apply to your spouse, discuss the pros and cons of alleging fault with your attorney.
A default divorce occurs when one party seeks a divorce and the other party:
- Refuses to acknowledge the divorce suit or to cooperate with divorce proceedings
- Cannot be found to be served with papers
In such cases, the unresponsive or missing spouse will be given a set amount of time to appear and respond to the divorce filing. If they do not respond or still cannot be found by the end of that term, the court will grant the filing spouse a default divorce.
In an uncontested divorce, both spouses:
- Agree to a divorce
- Agree to the terms of the divorce
- Reach their agreement together without the involvement of attorneys or other parties
- Draw up their documents on their own and submit them to the court for approval
Uncontested divorces tend to be appropriate only in limited circumstances. Spouses must be parting amicably and on relatively equal terms. They must be able to communicate clearly and do their own research on the law and divorce paperwork. They must reach decisions about dividing their assets that comply with legal standards.
This option can be appealing to couples without children and with very limited assets, as it can be one of the least expensive ways to divorce. It does not tend to work well in any situation that is complicated by children or physical and financial assets, however, as those cases are often too complicated for couples to successfully work through alone.
Couples seeking uncontested divorces are at a higher risk than other couples of unknowingly giving up their rights and losing assets because they do not have the assistance of an attorney. It should never be attempted with spouses who are:
- Mentally incapable of representing their own best interests
Couples in uncontested divorces also risk ending up in court if their agreed-upon arrangements do not hold up to the strain of real life once the divorce goes through. Couples considering an uncontested divorce may want to consider a mediated or collaborative divorce instead.
In a mediated divorce, each spouse retains an attorney. The couple and their attorneys then work with a mediator to negotiate their divorce agreement.
When couples are in full agreement, mediation can take as little as a few hours. When there is disagreement, it can take a few days to several weeks or even months.
In any case, the process provides protections for both parties that uncontested divorces do not. Lawyers and the mediator help couples divide assets fairly and can advise couples on what the law says or requires on various topics.
Mediation is most appropriate for:
- Spouses parting amicably
- Couples who want full control over the terms of their divorce instead of ceding authority to a judge
- Couples looking for unique or problem-solving alternatives to common points of disagreement, such as child custody
It is not appropriate in cases of abuse, domestic violence, or where one or both parties are unwilling to compromise.
In general, mediation can be a speedier and less stressful alternative to litigation in appropriate situations.
Collaborative divorce is much like a mediated divorce. The main difference is that the collaborative model tends to bring additional third parties to the table, such as:
- Financial advisors
- Child advocates
The collaborative process also takes longer than mediation, because couples address only one issue in each meeting. They work with appropriate professionals to seek the best possible outcome on that topic, then adjourn and repeat the process with a different subject the next time.
The goal of the collaborative process is to reach a positive agreement that keeps the couple out of court before, during, and after their divorce. It can also be ideal for families with special needs, such as children with serious health issues that need accommodation.
An important caveat to this process is that if the collaborative process fails, both spouses must hire new attorneys and scrap everything they worked on in the collaboration phase when they move to litigation. This represents an enormous amount of time and money lost, which motivates both spouses to give their best and cooperate fully at every step of the way.
Collaborative divorce can go a long way toward setting both spouses up for success post-divorce. As with mediation, however, it should only be attempted in situations where both spouses are stable and can be trusted to operate in good faith.
Arbitrated divorces are a cross between the mediated or collaborative and litigated divorce types. They are like mediated divorces in that both spouses and their lawyers work toward an agreement. They are like litigated divorces in that the arbiter has the final say and the ability to force compromises or conditions over the objections of one or both spouses.
Depending on the circumstances, arbitration may be run in a trial-like format or in a more informal way.
A litigated divorce is a contested and often contentious process that takes place in court and is overseen by a judge. It is what people traditionally think of when they think of divorce.
In general, litigation is the most expensive of the divorce processes. It also takes the longest. In fact, contested and litigated cases can potentially drag on for years.
The most important thing to know about litigated Texas divorce cases is that the judge, rather than the spouses involved, has the final say in all matters. This includes, but is not limited to:
- The division of assets
- Child custody
- Other terms
This can leave both spouses dissatisfied with the end result. That is why, whenever possible, it is preferable to use mediation or collaboration.
Unfortunately, while litigation is far from ideal it is the only option in situations where one spouse is:
- Violent or abusive
- Unwilling to compromise on any point
- Acting in bad faith
Litigation is also the final recourse for couples who have tried other forms of divorce and failed to reach the necessary compromises or agreements for success.
Choosing the Type of Divorce That is Right for You
Choosing which if the different kinds of divorce is right for you is often less complicated than couples expect. In part, this is because so many factors can disqualify couples for the more desirable forms of divorce such as mediation and collaboration. Couples who cannot work together in any way or in which one party is untrustworthy or refusing to compromise have no choice but to litigate.
If you are unclear about what is in your best interest, however, you should consult your lawyer before agreeing to anything with your spouse. Do not agree to any situation you do not know to be a safe and viable option in your specific case, as this can cost you in the long run.
Schedule a Consultation
If you need guidance on which types of divorce may be appropriate for you, contact us to schedule a consultation today. You can also browse our other great articles for more information on preparing for a divorce in Texas.