In the State of Texas, after you have been served formally with a divorce petition as filed by your spouse, you have until 10:00 a.m. on the first Monday that occurs after the expiration of twenty days to file your response to the lawsuit. Suppose this seems like the most confusing deadline you’ve ever been presented within your life, then you are not alone. It would help if you counted twenty days after your service date, then find the following Monday that falls on the calendar. By 10:00 on that Monday, you must have filed an Answer.
Does the following situation ring a bell with you?
What if you and your spouse have been discussing your case for a specific time, and you know that you and she have agreed on all of the terms of your divorce. Property and child-custody issues have been completely sorted out. Even though you may not be too excited about proceeding with the divorce, you nonetheless agree that the terms that you’ve decided to are fair to both of you and are in the best interests of your kids. Now that it’s all said and done, you feel good about what you were able to accomplish.
Now you find yourself looking at many legal papers that a strange person just handed over to you when you got home from work. A bit confused, you call your wife to see what this is all about. She reminds you that she has hired an attorney to help her, and you take your agreements and put them into a format that the judge will be willing to sign off on. She tells you that the strange man at your house and the legal papers are all a part of the necessary legal formalities—nothing at all to worry about, though.
You recall signing a document known as a Final Decree of Divorce that took all of your agreements and put them into writing. You did this with your spouse, and she told you that she would take the document to her attorney to file with the judge, and that would conclude your case: no muss, no fuss, all done in a relatively quick and painless fashion. You could put your feet up and worry about other, more pressing issues your spouse’s attorney told you.
After accepting service and making a phone call to your spouse to receive some reassurance, you hadn’t heard from your spouse or her attorney in some time. Thinking nothing of it, you have gone about your routine of seeing your kids and going to work—nothing significant to report one way or another.
However, one day, you get an envelope from a judge’s courtroom with some paperwork inside. The paperwork states “Final Decree of Divorce” at the top. As you look into the document, you can see that there are things that you did not agree to include in this version of the Final Decree. Worse yet, as you flip to the back of the document, your signature is nowhere to be found- although there is a blank space where you could have signed. Your heart begins to beat a little faster once you see that the judge has signed his name on the Decree.
The contents of this Decree are grim as far as you’re concerned. You’re on the hook to pay spousal maintenance, a hefty amount of child support, and you do not get to see your kids nearly as often as you had agreed to in the earlier version of the Decree. You feel trapped and don’t know what to do or who to turn to. What can be done for you in this type of scenario?
Meeting with a family law attorney to see what the next step is
Now that you’ve figured out that you may
be in some legal trouble; you decide to seek the advice of a family law attorney. This is the exact thing that you thought you were avoiding by being friendly to your ex-spouse and her lawyer in the first place. You don’t like lawyers and never have. Now you have to grit your teeth and talk to one anyways to see just how much hot water you are in.
You go in and talk to the attorney who relays to you what I discussed at the outset of this blog post. Your wife properly served you, which required that you file an answer within the period I laid out above. You did not do so, allowing your spouse to go with her attorney with their order to the judge. She still had to wait the required 60 days to do so, but on day 61, she and her lawyer were in court bright and early to get their Decree approved by the judge. The lawyer tells you that your signed version has no legal weight or significance.
The issue is that the judge didn’t know anything about your agreements or how friendly you were to your ex-spouse or her attorney. The judge only knows what your ex-spouse’s attorney stated in that short hearing. The judge looked at the case history and saw that you were served correctly, failed to file an answer, and had honored the proper waiting period. As the judge saw it, there was no issue signing the order on that day.
Default Judgments can be reversed.
However, the next part of what the attorney tells you makes you smile. You learn to overcome a default judgment, but time isn’t necessarily on your side. A motion for a new trial can be filed to set aside the default judgment. You will need to have the court decide that your failure to file an answer was not intentional nor was the result of a conscious indifference on your part. Additionally, the motion for a new trial has a defense to your failure to file an answer. Last, the judge needs to determine that if she were to grant your motion for a new trial, there would be no undue delay or injury suffered by your ex-spouse.
Keep in mind that time is not your friend.
As I mentioned earlier, time is not on your side when filing a motion for a new trial. Within thirty days of the judge signs your divorce decree, you must do so. Look to the date as it states on your order, not on the date you received notice of the Decree having been signed. All is not lost if you find yourself in this position. Still, it would help if you did, as I suggest in this blog post, meet with an experienced family law attorney who can not only talk you through the elements of a default judgment but can also advise you about your rights as it pertains to your specific facts and circumstances.
Questions about motions for a new trial in a divorce case? Contact the Law Office of Bryan Fagan
If you have become aware that a default judgment was issued against you in your divorce, do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We can speak to you about the possibility of our office representing you in filing a motion for a new trial and can appear with you in court to argue that motion.
Your ex-spouse will be in court as well, with their attorney arguing against your motion. You should be prepared with your experienced legal representative to counteract this. Our office has argued motions for a new trial in multiple counties in southeast Texas and would be honored to do the same for you and your family.
Our office offers free of charge consultations to people in your position, and we will give you honest, candid, and complete advice on this subject or any other in family law. Our licensed family law attorneys meet with potential clients six days a week and take great pride in helping people just like you in Houston, The Woodlands, Katy, Baytown, Galveston, and in all points in between.