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
- 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
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
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
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- 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?
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
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 one of our
Houston, TX Divorce Lawyers right away to protect your rights.
divorce lawyers in Houston TX are 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 Houston, Texas, Cypress, Klein,
The Woodlands, the FM 1960 area, or surrounding areas, including
Fort Bend County and