In states that require one party to be “at fault” for the divorce, you must prove some grounds for divorce such as adultery or abandonment. However, Texas is a “no-fault” state meaning that either party does not need to prove fault for a divorce to be granted. Regardless of whether you plead at fault or no-fault, there are procedural errors that may lead to your final judgment being denied, delayed, or dismissed.
Before we discuss a divorce proceeding where both parties are involved, it is important to understand a divorce by default. In a default divorce, the respondent has refused to respond to the lawsuit by filing an answer or counterpetition. After the 60-day waiting period requirement has passed, the filing party can file a default divorce. In a default divorce, there are certain documents required for the judge to grant the judgment. For example, the party requesting the default divorce will need to properly show that the service of process was executed on the respondent to give him notice of the lawsuit being brought against them. No proof of service can, as a result, have the divorce denied if it is not properly proven that they received notice.
Secondly, a default judgment can be denied if the requested order exceeds any requests you made in your original petition. Anything not requested in the original petition cannot be awarded unless the petition is amended. Lastly, not having enough information can also lead to your default divorce being denied. For example, if there are children involved in the marriage you may have requested child support, or maybe even spousal support to help support yourself. There will need to be evidence documenting the amount of support you are attempting to be awarded such as pay stubs, etc. Any combination of these can lead to your divorce being denied until all judgment checklist requirements have been fulfilled. Most counties have these requirement checklists listed on their websites for convenience.
In a divorce, both parties can be actively involved in the process to get all they are entitled to from the divorce. Most parties will plead no fault to help the divorce proceeding be as amicable as possible and help eliminate finger-pointing. This can be known as an uncontested divorce. In an uncontested divorce, both parties agree with all divorce-related issues involving child custody, support, division of debts and property, etc.
Where parties cannot agree to all divorce-related issues, this can still be either an uncontested or contested divorce depending on whether the parties want to settle amicably. In a contested divorce all issues regarding the faults of the divorce must have some evidence of proof. If the parties are working towards a settlement the case will generally settle out in mediation. However, if the case is believed to go to trial there will need to be proof that the other party is at fault. For parties working to reach an agreement, mediation is the most cost-efficient route to take to avoid having a trial or hearing before the judge to settle all issues regarding fault and property division.
However, most divorce cases do not make it to trial and will settle out before. When parties believe they have reached an agreement, it is not uncommon that one party refuses to sign the divorce papers due to some unfairness and this can be a reason a divorce gets delayed, denied, or even forced into a trial. Regardless of the divorce is contested or uncontested, there is usually a checklist of required documents and forms that will need to be submitted to the court before a final judgment can be granted and can lead to the divorce being denied if forms are missing. These small procedural issues and technicalities are not uncommon, especially if parties are attempting to do their divorce pro se. Another way of how a case can be denied is that the parties never met the residency requirements for the court to exercise jurisdiction over their divorce. The court cannot make a binding judgment on parties that are not within their jurisdiction.
The next way for your case to be denied, rather dismissed, is through a DWOP. A DWOP is known as a “dismissal for want of prosecution” and is a court’s way to request some action be done to a case that has been on a Court’s docket for a while with little to no action. The courts have a deep caseload that can slow down their efficiency if they were to let cases that have had no activity done on them continue to fill up their docket. It is a court’s remedy to require some action, usually by setting the case for trial. The parties will be required to go to the hearing to argue that the activity has been done. If the parties fail to appear it is then that the case is DWOP’d or “dismissed for want of prosecution.”
A few reasons the case can lead up to the point of a DWOP is that the filing party never served the opposing party or had them file a waiver of service. Next, a spouse that has been served never filed a response into the case, and the filing party never moved for a default judgment against them. The parties or their lawyers missing a hearing, or missing deadlines for the discovery period, are ways that a court may notify parties that their case is on the brink of dismissal. If this does happen, there is a 30-day period for the parties to move to have the case reinstated. This requires a hearing to prove the reasons why the court should grant the reinstatement. If the reinstatement is denied, or the period passes with no motion to reinstate on file the only other remedy is to refile the case altogether.
Knowing that your divorce case can potentially get denied will help prepare parties for how to avoid any procedural issues that may be overlooked during the divorce proceeding. It is also good for parties who believe they will be eligible for a default divorce to understand the requirements they will need to meet to have a judge enter a default judgment in your favor. Although it is uncommon, knowing how to keep your divorce proceeding active can keep your case from being dismissed for want of prosecution. There are many ways your case can be denied or dismissed, and having an educated attorney can help ensure your divorce is settled as smoothly as possible.
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Law Office of Bryan Fagan, PLLC | Spring Divorce Attorneys
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Attorneys right away to protect your rights.
Our divorce attorneys in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC 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.