Many times the reason people end up in my office is because they are concerned because their spouse has sued them for divorce, and the paperwork is talking about a default judgment. They ask what is a “default divorce?”
Personal Service is Required in a Texas Divorce
Every person in Texas that is involved in a lawsuit including a divorce is entitled to personal service of a copy of the lawsuit that was filed with the court.
As mentioned most of time when I am being asked about a “default judgment” it is because the person asking has experienced “personal service” when a constable or a private process server has handed them them a copy of the original petition for divorce and a citation.
Under Texas Rules of Civil Procedure 99 The citation states that was served with in the divorce will provide the following notice:
"You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you."
What is a Default Judgment?
A default judgment in a Texas divorce is when the person who was served with the divorce petition fails to file a written answer as they were directed to in the notice within the required time.
This failure to respond allows the person who filed for divorce to seek a default judgment from the court. A default judgment is a judgment entered by the divorce court. This judgment will basically be for whatever is asked for by the person who filed for divorce within reason.
The asking party will still have to provide evidence show:
- The property division is “just and right”
- What they are asking for in regards to the children is in their “best interest”
However, I always tell people it is easy to win a one-sided argument. If the other spouse is not there to contradict them then the court only has one set of facts to go on.
A written answer is a document filed with the Court stating you are aware that you have been sued for a divorce and you are answering the divorce lawsuit. If you do as you are instructed, then your spouse will not be able to get default divorce and the divorce process will continue as usual.
What time period for being able to obtain a Default Judgment?
In the notice language time period given was “the Monday next after the expiration of 20 days.” However, there is another important date in a divorce. That date is the day the Original Petition for Divorce was filed.
That is because a divorce in Texas has a mandatory sixty day waiting period before you can finalize the divorce. This means that day sixty-one from when the Original Petition for Divorce has been filed is the soonest a divorce can be finalized. So it is important to pay attention to both of these dates when calculating when your answer is due.
To calculate the answer period, find the day the Respondent was served on a calendar, count out 20 more days (including weekends), then go to the next Monday. This is the last day of the Respondent’s answer period.
You may have a little bit more protection if the 60 day waiting period is not up. However, for other reasons you still want to get your answer filed prior to the “Monday next after the expiration of 20 days.” If you file your answer in time then the normal divorce process will continue.
Requirements for Obtaining a Default Divorce
If a spouse being served with divorce paperwork:
- has been personally served with the divorce petition
- the period in which that person has to answer the lawsuit has expired
- the citation has been returned and has been on file for at least 10 days then
- the petitioner in the divorce may obtain a default divorce
It’s important that a court reporter make a record of what is said at a default hearing. Ask the clerk if a court reporter will be available. It’s a good idea to have all of your paperwork reviewed by a lawyer before going to court. You can hire a lawyer just to review your paperwork.
Evidence in Court
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.
For example, if you are requesting something other than a Standard Possession Order in regards to visitation for the other parent, you must prove to the Judge why the schedule you are presenting is in the “best interest of the children.”
If you are asking for child support, you must provide information about the other parent’s income. If you don’t know the other parent’s income you may be able to ask the Judge to base child support on the minimum wage.
The Judge will go over the documents you have filed, to make sure you can finish your case by default.
The Judge will ask you to testify to “prove-up” your case. If at the end of the hearing you have prepared all the necessary forms and put on all the required evidence the Judge will grant the divorce.
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 on regarding the default judgments include:
- The Judge Ruled Against Me in My Family Law Case Now What?
- I have been served with Divorce Papers - What do I do now in Texas?
- Roadmap of Basic Divorce Procedure in Texas
- What is mediation?
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.
Our 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, 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.