Default Divorce in Texas
Have you considered filing for divorce but were scared your spouse wouldn’t consent or sign off on the divorce? Not to worry – Texas law provides you with a way to get divorced, it’s called a Default Divorce.
What Is the Default Divorce Process?
When a party files for a divorce, an Original Petition for Divorce is filed with the District Clerk. The District Clerk receives the documents and assigns the case a Court and a Cause Number, which is an identifying number for the case. The next step, and most important in a Default Divorce, is service.
A process server or sheriff’s deputy must serve the Original Petition for Divorce and Citation on your spouse. A Citation is the document that legally puts someone on notice that a lawsuit has been filed against them. You have probably seen a Process Server before in the movies. This is a person who approaches your spouse, hands them the petition and citation, and says, “You’ve been served!” Service officially puts your spouse on notice that the divorce has started, and that he or she has a certain number of days to enter the case.
Your spouse can enter a case by filing an answer, obtaining an attorney, or by showing up at a court proceeding. If your spouse does not appear, either in person, by attorney or by a document, the Court may proceed with the case without them.
If your spouse fails to file an answer twenty-one days after service, it may not mean that your divorce can be granted immediately. Texas has a cooling off period. This means that parties must wait 60 days from the date that the Original Petition for Divorce was filed before getting a divorce.
If you have met the sixty-day waiting requirement and your spouse has still not appeared in the case, you may proceed with the Default Divorce. Depending on the nature of the case, you will need to bring all the documents the Court requires. You can check each Court’s individual website to see what the Court requires. Cases with children differ from cases without children.
What Happens Once You Have Begun to Proceed with Default Divorce?
Regardless of if you and your spouse have children, you will need an inventory and appraisement. You will also need to bring a Final Decree of Divorce, which is the document that the Judge signs to grant your divorce. The Final Decree of Divorce will lay out the terms for conservatorship, possession and access, child support and property division. The Final Decree will mirror what you are asking for in Court.
The Default Divorce Trial
When it is your turn, the Judge will call your case. You will give testimony and your attorney may introduce evidence or even call additional witnesses. The questioning and testimony will vary depending on the issues in the case and what is disputed. Ultimately, you want to ensure you tell the Court why you want a divorce and what you are asking the Court to grant you in regard to property division, conservatorship, possession and access, and child support.
The Judge in all trial settings, has to rely on the Texas Family Code. This means the Judge must do what is “in the best interest of the child” and divide property in a “just and right manner.” Sometimes what a party wants or what a party believes is in their child’s best interest or a “just and right division” is not always aligned with the law. For example, if no evidence is presented to the Court on why a parent should not see their child, it would be unlikely that the Court grants that parties wish. When you go to a Default Divorce, you do run the risk that the Court does not side with you and gives you a different outcome than what you want.
Once the trial ends, the Judge will either make a ruling immediately or they will take it under advisement and issue a ruling later. When the Judge issues the ruling, he or she will tell you what will happen to your property and to your children. From the date the Judge makes a ruling, your spouse (the party who did not show up) has thirty-days to file a Motion for New Trial and attempt to overrule the decision because they were not there. Once the thirty-day period has passed, the ruling is set in stone.
Can I File a Motion for New Trial?
If you do not like the Judge’s ruling, you also have thirty-days to file a Motion for New Trial. The purpose of this motion is two-fold. First, it asks the Court to overturn its decision and rule in your favor. Second, it perfects your ability to file an appeal to the court of appeals, should you choose to do so. If you wish to appeal the Court’s ruling, you must file the Motion for New Trial within the required time period. You should consult an attorney if you wish to do either of these options.
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