San Antonio Divorce Attorney

An uncontested divorce is one in which both parties agree on all the major aspects of the divorce, including property division, child custody, child support, and spousal maintenance.

Typically, uncontested divorces are more straightforward, quicker, and less expensive because they avoid prolonged court proceedings. While they are suitable for couples with minimal assets and no children, they can also be achieved when couples are willing to work collaboratively to reach agreements.

In contrast, a contested divorce arises when spouses cannot agree on one or more critical issues. Disagreements may be over assets, custody arrangements, or fault-based allegations. While both spouses may come to agreements through negotiation at some point along the way, contested divorces often require court intervention, leading to a more prolonged and costly process.

There is no distinction when you file for divorce whether yours will be a contested or uncontested divorce. Whether you will require court intervention will come down to your unique circumstances, your ability to find compromise, the complexity of your assets, and whether you have minor children. Consulting with the experienced San Antonio divorce attorneys at Melone Hatley, P.C. can provide guidance and clarity on your best path forward.

Most divorces in Texas are filed on no-fault grounds, meaning neither spouse is legally blamed for the breakdown of the marriage. A no-fault divorce can be pursued based on insupportability. Insupportability is the legal term Texas uses for irreconcilable differences, meaning that the marriage has become insupportable due to conflict or discord, and there is no reasonable expectation of reconciliation. No further proof is required beyond one party’s assertion that the marriage cannot continue.

While Texas allows for no-fault divorce, spouses may also choose to file for divorce based on specific misconduct by the other party. These fault-based grounds must be proven with evidence, and if established, they can significantly influence the outcome of the divorce.

Texas recognizes the following fault-based grounds for divorce:

• Adultery
  A spouse who engages in an extramarital affair may be found at fault. If adultery is proven, it can result in the court awarding a greater share of the couple’s community property to the innocent spouse.
• Cruelty
  If one spouse treats the other in a way that makes living together insupportable through verbal, emotional, or physical abuse, this may serve as grounds for divorce.
• Abandonment
  A spouse may claim abandonment if the other left voluntarily with the intent not to return and remained away for at least one continuous year.
• Felony Conviction
  If a spouse has been convicted of a felony, imprisoned for at least one year, and has not been pardoned, the other spouse may file for divorce. This ground is not available if the conviction was based on the testimony of the filing spouse.
• Living Apart
  If the spouses have lived apart without cohabitation for at least three years, a divorce may be granted on that basis.
• Confinement in a Mental Hospital
  A divorce may be granted if one spouse has been confined to a mental health facility for at least three years and is unlikely to recover or is expected to suffer a relapse.

Successfully proving fault can have a major impact on the final divorce outcome. However, it is important to understand that the spouse alleging fault bears the burden of proof and must provide the court with direct or circumstantial evidence of the misconduct.

Texas is a community property state, meaning all assets and debts acquired during the marriage are presumed to be jointly owned and must be divided between spouses in a “just and right” manner. However, this does not necessarily mean a 50/50 split. If spouses are unable to come to an agreement on their property division, the court will intervene and has discretion to award a disproportionate share to one spouse based on various factors, including:

• Each spouse’s earning capacity and financial condition
• Fault and marital misconduct
• Future needs of each spouse
• Contributions to the marriage, both financial and non-financial

In Texas, child custody is known as conservatorship and refers to each parent’s legal rights and responsibilities.

The primary forms of conservatorship in Texas are:

Joint Managing Conservatorship

Joint managing conservatorship refers to an arrangement where both parents share the rights and responsibilities for making important decisions about their child’s life after divorce or separation. These include the child’s education, medical care, religious upbringing, and where the child will live. Joint managing conservatorship does not necessarily mean 50/50 custody. In most cases, one parent is the primary custodial parent (primary managing conservator), and the other has visitation rights unless they have made different arrangements.

Sole Managing Conservatorship

Texas courts typically prefer joint managing conservatorship but may order sole conservatorship if there is a history of family violence or abuse or there is evidence that joint conservatorship would not be in the child’s best interests. In Texas, sole managing conservatorship means that only one parent has the legal right to make important decisions about the child’s life. The other parent may be named a possessory conservator with no or limited decision-making power, depending on the circumstances.

Possessory Conservatorship

The noncustodial parent is formally referred to as the possessory conservator. This parent has the right to visitation or possession of the child and other limited rights and duties when the child is in their care. However, the possessor conservator does not have the legal authority to decide where the child lives, their education, non-emergency medical treatment, or other major decisions. The court may also impose supervised visitation or geographic limitations when there are safety concerns.

Possession and Access

In Texas, possession and access refers to a parent’s rights and schedule to physically spend time with their child. In other states, this is commonly called visitation or parenting time.

The court’s guiding principle in all custody decisions is the best interests of the child. This standard ensures that custody decisions always prioritize the child’s physical, emotional, and developmental well-being now and in the future.

When minor children are involved, child support is a mandatory component of the divorce or separation process. Texas law provides guideline calculations based on the paying parent’s net income and the number of children being supported.

The standard child support percentages of net resources are:

• 1 child: 20%
• 2 children: 25%
• 3 children: 30%
• 4 children: 35%
• 5 or more children: 40%

Support may be adjusted for special needs, medical expenses, or in high-income cases. In addition to monthly support payments, one parent may also be responsible for health insurance coverage, uninsured medical expenses, and education or extracurricular costs. Child support typically continues until the child turns 18 or graduates from high school – whichever occurs later.

Spousal maintenance is not automatically awarded in Texas and is generally limited to specific circumstances.

To qualify for spousal maintenance in Texas, the requesting spouse must demonstrate an inability to meet their basic needs due to a lack of earning ability and one of the following:

• The marriage lasted at least 10 years, and
• The requesting spouse lacks the ability to earn sufficient income, or
• The requesting spouse has a disability that prevents them from earning enough to support themselves, or
• The requesting spouse has custody of a child from the marriage, and the child has special needs that prevent the spouse from earning enough to fulfill their basic needs.

Spousal maintenance may also be awarded if the other spouse has been convicted or placed on deferred adjudication for family violence within two years of the divorce filing.

Texas limits the amount and duration of spousal maintenance, and the court typically awards only what is necessary to support the requesting spouse while they work toward self-sufficiency.