When facing a divorce, people can have widely differing reactions to this situation. When you knew that a divorce was coming from your family you took the bull by the horns and went ahead and filed your case. This allowed you to be in the driver’s seat and to know a little bit in advance what to expect as far as your case was concerned and a timeline of events. You want it to be aware of what was going on with your case and with your life and so you chose to file for divorce rather than to have the divorce filed against you. While there is no specific advantage, from a legal standpoint when it comes to filing or having the divorce filed against you there is certainly a temporary strategic advantage to being able to know that a divorce is coming.
One of the reasons why you may have filed for divorce from your spouse is due to him or her no longer living with you. He or she may have moved out of the home and is now residing someplace else. Whether you know it or not, the ability to have your spouse participate in the divorce process is critically important. There may have been times in your marriage when you had wished your spouse would just leave. “Life would be easier if he just left and never came home.” That sort of thing. While you may have been correct in many regards as far as how life may have improved once he left, now that he’s gone getting a divorce may prove to be a challenge.
Having a spouse that you cannot locate or one who isn’t taking your attempts to obtain a divorce seriously can be hindrances to the process, no doubt. Just chugging right along like the little engine who could sound nice, but the reality is that the law in Texas requires that you either provide actual notice of the lawsuit to him or her or constructively do so through a method of substituted service. A spouse who won’t play ball in the divorce means that you must work a little harder- and spend more time- actually completing the process. It can be done, but you’d rather your spouse participate.
What if you are the spouse who refuses to engage in the divorce process?
Before we talk some about what it means for you as the spouse who wants to get divorced and your spouse won’t participate, I’d like to put the shoe on the other foot. Let’s imagine for a moment that you are the spouse who is trying to avoid getting served with divorce papers. Or, you may not have been able to avoid getting served but you just don’t want to respond or do much of anything in response to the divorce case. You figure that if you just don’t do anything the whole thing could either go away or at least be delayed enough until you find the motivation to participate.
Not participating in the divorce is a bad strategy on many levels. To begin with, a divorce case is not like that honey-do list that your spouse used to give you each weekend. If you ignore that long enough your spouse may have forgotten all about it. A divorce case, especially one where your spouse has hired an attorney, is likely a situation that will not just be swept under the rug or forgotten. If your spouse has gone through the trouble to hire a lawyer and proceed with a divorce, then dollars to donuts she wants to get this done. You are ignoring the paperwork that you received not only is going to annoy your spouse but it could position you for a really bad outcome in your case.
When you are served with the divorce papers including a citation, the process server or constable will complete the affidavit of service and return it to the courthouse. This is a crucial step in the process. The reason being is that you have a deadline to file an Answer to the petition for divorce before the first Monday after 20 days has expired from the date on which you were served with the citation and divorce papers. This may sound like a lot of time, but you can find yourself in a mess if you are not careful.
Not responding to the petition for divorce with an answer in enough time leaves you susceptible to having a default judgment issued against you. A default judgment is a judgment made against you in the case where you have not entered an appearance or otherwise filed an answer. by missing the filing deadline your spouse can draft a final decree of divorce that is completely one-sided and favorable to him or her for submission to the court. This means that he or she would have the advantage when a judge reviews the order. So long as the proposed final decree of divorce does not violate any Texas public policy principles then it is likely that the final decree of divorce submitted by your spouse would be approved. These court orders would apply to your case in your life even though you chose not to participate.
Some people choose not to participate in the divorce process due to the desire to reconcile with their spouse. However, you should understand that by delaying the divorce or otherwise not participating in the process there is no advantage regarding reconciliation. Rather, many people begin the divorce process and participate fully only to find themselves wanting to reconcile with their spouse. Given the waiting period of 60 days, after a divorce petition is filed, you and your spouse will likely have sufficient time to explore reconciliation if that is a mutual decision. From there, you all can determine how to proceed with the divorce, if it is at all. You may even want to try and work through some sort of counseling to determine whether or not there is going to be any hope of a reconciliation.
There is just too much at stake in a divorce case, potentially, for you to choose not to participate. When it comes to your property, your spouse can potentially divide property that you own without your knowledge or permission if you do not participate in the case. Next, regarding your children, your spouse can assess child support against you and give you less than favorable visitation choices when you choose not to participate in your divorce. With there being so much at stake as far as divorce is concerned with your property and family it is wise to consider your options.
not wanting to proceed with the divorce because you are not an expert in a divorce scenario is not a great reason to put the divorce petition aside and never pick it up again. Rather, if you have been served with divorce papers then you can reach out to the experienced family law attorneys with the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week at our three Houston area locations, over the phone, and via video. We can talk to you about how our office can provide you with distinguished and trustworthy service no matter what divorce circumstances may be thrust upon you.
Having your spouse served with divorce papers
The first real opportunity that you will have in your divorce case to judge whether your spouse is going to participate in the case is during the service phase. You must provide notice of the divorce to your spouse. Typically, this is done by having him or her served with a copy of your original petition for divorce as well as a citation. A private process server, constable, or other law enforcement officer can pick up the documents from the courthouse and then serve your spouse at an address you provide him or her with.
Once your spouse is successfully served the process server or law enforcement officer would return proof of service to the courthouse so that the clerk of your court and the judge would know that your spouse has been served properly period from there, your case can continue knowing that your spouse has legal notice of the divorce. He or she may have received the documents and simply threw them away or tossed them in the trash. The process server does not have to note what the person did and what the documents were after they were handed to him or her period all that matters is that the process server or constable located your spouse and physically handed him or her the papers from the court.
this constitutes legal notice to inform your spouse of the pending divorce. What he or she does with that legal notice is completely up to them. As we have already discussed, pardon your spouse will have approximately 20 days from the moment that they are served to file an answer to your original petition for divorce. By filing an answer your spouse will be able to receive notice of any court dates as well as deadlines for the case. By choosing to not file an answer then your spouse puts himself in a position where you can move forward in the case without their permission or participation.
You need to keep track of time once your spouse has been served. not having an attorney to represent you in your case means that you will be responsible for the timeline and deadlines moving forward. Figure out when the first Monday after 20 days of service hassle lapsed in and mark that date on your calendar. This is the deadline that your spouse needs to meet to fulfill their obligations under Texas law for filing an answer. While you wait for your spouse there are steps that you can follow to prepare for the next phase of your case. If you do not waste time and act diligently then you can position yourself well for success.
While you wait for your spouse to possibly file an answer you should be thinking of the language that you want to be included in your final decree of divorce. You can go through the forms on our website or within this do-it-yourself divorce guide to see exactly what a final decree of divorce must contain in Texas depending on the type of case you have. If you own little to no Community property and have no children, then your final decree of divorce does not have to be all that long or detailed. However, if you have children from the marriage under the age of 18 and Community property that will need to be divided you will need to think about issues like how to divide the Community property, conservatorships for the children, and a possession schedule for the children.
By choosing not to participate in the divorce, your spouse is putting themselves in the position where he or she will be allowing you to have the final say on these important subjects. While this certainly puts you in the driver’s seat as far as determining what the final orders will say you should recall that there are limitations on What you can draft to say based on the public policy of the state of Texas. For instance, if any of the burdens put on your spouse are two one-sided then a judge may not approve your order. Therefore, you should utilize some restraint when drafting your final decree of divorce.
If your spouse does fail to file an answer by the deadline that you marked on your calendar, you will be in a position where you can now move forward without him or her. Proof of service needs to be on file for at least 20 days before you can move forward with your divorce. However, if you prepare diligently, you can take advantage of your spouse not participating in the process to obtain a default judgment against him or her. What it takes to do this is to stay intentional about your goals and to be diligent about keeping track of time. These are the sort of responsibilities that can be shared by an attorney if you choose to have one represent you in your divorce.
What if you are having difficulty locating your spouse for service?
The other issue that you may be having in terms of your spouse not participating in the divorce is lacking the ability to locate him or her. In some cases, you may have separated from your spouse months or even years ago. However, living separately from your spouse does not carry with it any special legal designation. Under the law, the two of you would still be married in this circumstance. Locating him or her for a divorce could prove to be a challenge at this stage.
Your divorce court will want you to at least exercise some degree of due diligence when it comes to trying to serve him or her with notice of the divorce personally. You should work 2 find a handful of last known addresses for your spouse and attempt to have him or she served there. Whoever you are working with to have him served should document all their attempts and be prepared to complete an affidavit summarizing those attempts. Once it becomes clear to you that you are not going to serve your spouse personally due to not knowing where they are there are steps you can take to be able to move forward with your divorce.
A motion for substituted service should be filed with your divorce court along with an affidavit from your process server detailing their attempts to serve your spouse personally. You should also request a hearing before the judge to be able to have your motion heard and make arguments as to why you need to be able to move forward in your divorce with the method of substitute service. The judge will redraft David and listen to your arguments in court as to why you need to be able to be allowed to serve him or her using a method other than personal service.
Some examples of substituted service in Texas include service by certified or registered mail and service by publication or posting. you can work with your court clerk to complete these steps once the method has been approved by the judge. Doing so will allow you to start the clock that we mentioned in this section of today’s chapter before this one. You can then begin to think about what you want to be included in your final orders and how you want the language to read regarding subjects like your community property as well as the conservatorship of your children.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.