Contested Divorce

Contested divorce may seem like a redundant expression, but the reality of this life-changing event deserves serious analysis.  No two cases are identical but they fall into two general categories; situations in which the parties have discussed the dissolution of the  marriage and have reached at least a preliminary understanding on the issues or instances where the divorce is predicated on a traumatic event that destroys the underlying foundation of the marriage.

HOW HARD DO YOU WANT TO MAKE THIS?

It follows that the degree to which the divorce is contested ranges along a continuum from mild disagreements that are quickly resolved to all out warfare that rages on and ultimately results in trial.  Most divorces fall somewhere between these two extremes.  Texas is a “no-fault” state which means that a party can get a divorce by simply alleging “insupportability” so that even if the other party does not want the divorce, it can be granted on no-fault grounds. 

However, the granting of the divorce is predicated on either a judgment rendered by the court after a bench or jury trial or pursuant to an Agreed Final Decree of Divorce signed by the parties.  That is, the division of assets and liabilities, child custody and support and a myriad of other issues must be resolved before the marriage is dissolved.  If the marriage is of relatively short duration, the community estate may be commensurately smaller while the parties’ separate estate is larger.  This may reduce the opportunities for conflict.  In a long term marriage, the situation is usually reversed which creates increased conflict.

Custody is very often contested, even in short term marriages.  In some cases, especially where substance abuse or dependence is an issue with the child’s mother, it mitigates substantially against making a person with these kinds of issues responsible for children.  At a minimum, the court will order drug testing on both parties.  Often the court will order the parties to remain in the court room and the technician from a testing facility will come to the court house to collect hair and urine samples.  This prevents the parties from attempting to use masking products or adulterants that skew test results.

HOW MUCH DO YOU WANT TO SPEND?

Despite the obvious emotional component that inevitably accompanies the process; a cost-benefit analysis should be employed in approaching the issue of just how much can be gained versus the costs of getting there.  Financial issues lend themselves to this approach much more readily than do child custody and visitation.  Practical necessity in custody issues is usually a crucial factor in determining which parent the child will live with most of the time.  This is especially true where the children are very young and all other things being equal, usually the mother will be the primary conservator.  However, once the child reaches age twelve, he is free to sign a written election indicating the parent with whom he wishes to reside.  While this alone is not dispositive, it will carry significant weight with the court.

There are situations in which either parent is a viable choice as the primary conservator but only one can be designated as such with the all important right to designate the primary residence of the child. If this is to be a contested issue, it is likely that there will be a custody evaluation performed by a psychologist appointed by the court.  The parties and the children will be interviewed, a battery of psychological tests, such as the Minnesota Multiphase Personality Index (MMPI) will be administered to the parties.  This is a standard test commonly used in this procedure.

The psychologist will observe how each parent interacts with the children in a play or learning environment.  He will prepare a report for the court’s review and consideration and this will play an import role in the decision.  His deposition will probably be taken by the parties since there will probably be a scheduling order that establishes a trial date as well as cut-off dates to complete discovery.  It will ultimately cost several thousand dollars to accomplish all that is needed to adequately prepare the case for trial.

A social study will also be conducted by either a private social worker or the county department of domestic relations, depending on the resources available.  The social worker will visit both homes and interview the parties to evaluate the living conditions.  A report will be prepared and presented to the court to aid in the decision making process.   Generally, the costs are divided between the parties.

THE ROLE OF THE FAMILY LAW ATTORNEY

Your attorney should be competent in the dual role of advisor and litigator.  Aggressive does not mean obnoxious; it is the policy of our firm to zealously represent our client’s best interests while maintaining the highest level of professionalism.  We endeavor in good faith to resolve every possible issue without involving the court.  It is the public policy of the State of Texas to favor settlement and the court expects the attorneys on both sides of a controversy to foster amicable settlement.  If we cannot reach an agreement satisfactory to our client, we will not hesitate to present the case to the court and utilize every legal device available to obtain a favorable ruling.

Please call us today at 281.210.0010 or complete our contact form and let us assist you with your legal need.

Smith & Garg LLC | 1095 Evergreen Circle, Suite 300 | The Woodlands, Texas 77380
Please call 281-210-0010 | Fax: 281-362-9757

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