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Lawrence D. Gorin
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1544
Experience:  30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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How do I contest a divorce that i do not want,and I have just

Resolved Question:

How do I contest a divorce that i do not want,and I have just a few days left to sign the papers sshe had served on me.
Submitted: 8 years ago.
Category: Family Law
Expert:  Lawrence D. Gorin replied 8 years ago.
YOUR QUESTION:
     How do I contest a divorce that i do not want,and I have just a few days left to sign the papers sshe had served on me. I am in McKinney/Collin County, Texas.

ANSWER:
     It depends on whether it is the type of divorce that is contestable. Some divorces are; others are not.

     Under Texas law, divorce can either be "no fault" or fault-based. No fault divorce is a marital termination proceeding where the divorce is granted without either party being required to show fault (show that the other party caused the breakdown of the marriage). Under no fault rules, either party may obtain a divorce, even if the other spouse does not consent to the divorce. A married people can get a no fault divorce if (a) the marriage has become "insupportable" or (b) the couple has been living apart for three years.

     The allegation that the marriage has become "insupportable" is the most common basis for divorce in Texas. Most lawyers routinely include such in allegation in the divorce petition, even if other grounds are also alleged. The allegation that the marriage has become "insupportable" simply means that the petitioning party is claiming that marital discord and conflict has destroyed the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation. It is a matter of subjective opinion, which is difficult if not impossible to contest. Which is why it is incontestable.

     Texas divorces can also be fault-based, requiring one person to give a legal reason in order to get a divorce. Texas law allows for five different grounds for “fault” -- (1) adultery (2) abandonment, (3) incurable insanity, (4) imprisonment for a felony conviction, or (5) cruel and inhuman treatment.

     So you need to read the divorce petition (or complaint) closely to see what is alleged. If it is a fault divorce, you can contest the divorce by filing with the court a written Answer or Response to the legal papers that were served on you. In your Answer or Response, you deny your wife’s allegations. This will put the case “at issue,” meaning that the legal papers have “framed the issue” to be decided by the court. A trial would then follow at which the judge will hear the evidence your wife presents (must likely being her oral testimony) in support of her allegations, followed by the court then hearing your evidence that disputes or contradicts the evidence that she has presented. Then, upon all the evidence submitted, the judge will decide whether there is a sufficient legal basis on which to allow for the termination of the marriage.

     If grounds exist sufficient on which grant the divorce (terminate the marriage), the judge is then authorized by law to make decisions and render rulings on five difference subject-matter areas:
     1. Alimony or spousal support
     2. Property division (and debt responsibilities)(
     3. Custody of minor children.
     4. Visitation (“parenting time”); and
     5. Child support.

     If a divorcing couple reaches an agreement on all issues that need to be resolved, and their agreement is put into proper written form, it will generally be accepted and approved of by the judge, with no need for further court proceedings. But if not, there would then be a further court hearing to hear the arguments that both parties wish to make on whatever issues are unresolved, and the judge will then make the decisions that the parties were unable to make on their own. Generally, it is better, if at all possible, to reach an out of court settlement rather than having the judge make decisions for you. At least then you have some control over the matter, whereas you have no control over what a judge might do.

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