Sometimes forward thinking clients or consults will ask about problems that may arise in the future. One question I have been asked a few times is “what if my spouse will not sign the divorce decree.” As with anything law related the answer often depends of the facts of the case. In today’s blog, we will examine different possible solutions based on the following scenarios:
- No Answer Default
- Answer and Final Trial
In this first scenario, we are going to assume that your spouse has participated in the divorce process by filing an answer, going to mediation, and signing a mediated settlement agreement. However, afterwards they have reconsidered and are now refusing to sign the final decree of divorce.
This is a scenario that happens every so often in divorce cases I have handled and is one of the reasons I steer cases into mediation. Things I like about mediation include:
- Gets all the decision makers in the same building not necessarily the same room at the same time.
- Agreements reached in mediation are final.
Decision Makers Same Building
Cost conscious clients are sometimes reluctant to pay an additional fee to have their case mediated. This is understandable concern. They want to know why can’t we just send their spouse an offer and handle things informally.
I have handled cases where doing things this way has worked. However, it has been my experience the more often than not it does not work or if it does it takes longer and costs more to do things this way. An example of why this happens is:
- We send over an offer then
- the opposing counsel reviews it schedules a time to meet with your spouse and go over the offer
- 2-3 weeks go buy they send over a counteroffer
- My office then meets with you. We then counter offer
- This goes on for 3-6 months until we think we finally have a deal and draft a decree.
- Then something happens where they want tweak or add things to the decree that were never agreed upon and everything starts over.
However, the above scenario can be shortened to 4-8 hours by getting everyone together in the same building in mediation. Rather than days, weeks, or months going by a mediator is walking the different offers back and forth between rooms. The attorneys are in the same rooms with their clients to discuss the different offers immediately when they are made.
Agreements Reached in Mediation are Final
The other major benefit of mediation. Is that if an agreement is reached in mediation it is final. This means that:
- The only way to change the agreement afterwards is if both parties agree to the change.
- As long as the Final Divorce Decree is drafted based on the mediated agreement if your spouse refuses to sign a Judge will still sign the divorce decree and grant you the divorce.
The way my office handles cases where a spouse refuses to sign the Divorce Decree when it is based on a mediated settlement agreement is:
- We will schedule a court date to enter the Mediated Settlement Agreement and prove up the divorce and give the other side notice of the date.
- Once the Mediated Settlement Agreement is proved up in the court the Judge will usually give my office 2 weeks to draft the Final Divorce Decree based on the mediated settlement agreement.
- If everyone signs the Decree then no one has to appear in court we can just file it with the court.
- If someone refuses to sign, then we have to go back to court and the party who refuses to sign can let the court know why.
- However, as long as the agreement accurately reflects the Mediated Settlement Agreement then the Judge will accept and sign the divorce decree and grant the divorce.
No Answer Default Divorce
One of the first steps in divorce process involves filing paperwork with the court called an Original Petition for Divorce. Once the paperwork is filed with the court the next steps is to give your spouse notice of the divorce lawsuit.
Parties involved in lawsuits in Texas are entitled to notice of the lawsuit and an opportunity to be heard by the Court. This is usually handled through “personal service.” Personal service involves a constable or a private process server delivering to the person on the receiving end of a lawsuit, a copy of the original petition and a citation.
The citation states:
- that the person has been served with a lawsuit in a specific county in Texas.
- The citation also states “you have until on or before 10:00 a.m. on the Monday next following the expiration of twenty days after you were served in which to answer the lawsuit.”
If they respond by filing an answer this prevents the filing spouse from being able to obtain a default judgment.
A default Judgment would be judgment in favor of filing spouse based the spouse served with the paperwork failure to act. This means if your Ex completely fails to cooperate with the divorce process or take any action as long as you follow the correct steps you will still be able to obtain a divorce by default after the required time period.
Default Divorce Time Requirement
In Texas, there is a mandatory 60 day waiting period before you can finalize a divorce. What this means is that on day 61 is that a divorce can be finalize either by:
- Agreement or by
Default Divorce Requirements
If the following steps have been completed then you can proceed with asking the court to grand you a divorce by default:
- Your Ex has been personally served with the Original Petition for Divorce
- They have failed to file an answer within the required time period
- The Citation has been on file with the court for at least 10 days
- 60 days have elapsed since the Original Petition for Divorce was filed
When requesting a default divorce from a Family Law Court the requesting spouse will be required to have the following documents:
- Final Decree of Divorce
- Wage Withholding Order (if there are children)
- Medical Support Order (if there are children)
- Child Support Information Sheet (if there are children)
- TFC Section 105.006 (if there are children)
- Court Report Information Form
- Certificate of Last Known Address
- Service Member Civil Relief Act Affidavit
You will also need to be prepared to present evidence for each thing you are requesting your Final Divorce Decree.
Answer and Final Trial
If however your spouse does file an answer in the time period required then the divorce will proceed down the normal divorce path. There are generally two ways to obtain a divorce in Texas:
- By Agreement or
- By Trial
If you can agree on being divorce then you can generally obtain a divorce any time after 61 days. If you cannot agree then the case will need to be set for trial. This means sometime after 61 days – 1 year away.
If the case goes to trial then the parties will put on evidence of what they are asking for and a Judge will make a ruling and set a day for the Final Decree to be entered.
If your spouse refuses to sign the final decree based on that ruling then everyone will come in on the day the judge set and they will have a chance to say why they are refusing to sign. However, as long as the Final Decree accurately reflects the judges ruling the judge will sign the decree.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- What Happens if my Ex-Spouse Refuses to Sign the Final Decree of Divorce Revisited
- What does a Default Judgment Mean in a Texas Divorce?
- I have been served with Divorce Papers - What do I do now in Texas?
- Roadmap of Basic Divorce Procedure in Texas
- What is mediation?
- The Judge Ruled Against Me in My Family Law Case Now What?
- The Dirty Trick of Filing for Divorce in Another City
- The Dirty Trick of Moving Out of State with the Kids
- Should I move out of the marital home during a divorce?
- 6 things You Need to Know Before You File for Divorce in Texas
Law Office of Bryan Fagan | Spring Divorce Lawyer
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Spring, TX Divorce Lawyer right away to protect your rights.
A divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.