Last Updated on September 28, 2023 by Turner Thornton
Divorce can be stressful for anyone. This is especially true for the person on the receiving end of divorce papers, especially if it was unexpected.
Sometimes, they are so surprised by the dissolution of their marriage that they just ignore it. This can be problematic because the served spouse must respond to the divorce papers within a certain amount of time. If they don’t answer, the Texas Family Court can grant a default judgment and finalize the divorce without their say in the matter.
A default judgment means the divorce will be finalized without the other party’s input regarding asset division, child custody, child support, spousal support, and other important issues. In this blog post, we’ll explain default judgment, what is required of the person seeking a divorce, the timeline, and why it’s important to have legal representation.
What is a default judgment in a Texas divorce?
A default judgment in a Texas divorce occurs when the person served with the divorce petition declines to file a written answer as directed within the required time, per Texas Rules of Civil Procedure 99. Texas requires the petition to state the following:
"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 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. In addition to filing a written answer with the clerk, you may be required to make initial disclosures to the other parties of this suit. These disclosures generally must be made no later than 30 days after you file your answer with the clerk."
The failure to respond gives the party who filed for divorce the opportunity for a default judgment from the divorce court. Typically, this default judgment includes whatever the person filing for divorce requests, within reason before the judge. In this scenario, the filing party still must show the judge that the property division is fair and, if child custody is involved, why their wishes are in the child's best interest.
If the party receiving the divorce petition files a written answer with the court, a default judgment is not possible, and the divorce process will continue.
How long does a default judgment take in a Texas divorce?
There is a mandatory 60-day waiting period before a divorce can be finalized in Texas. That means 61 days after the Original Petition for Divorce was filed is the earliest a divorce can be finalized. That is also the earliest that a default judgment can be granted.
However, it is also important to note the timeline for a default judgment. Once the divorce petition is served, the party must answer in writing and file with the court within a specific timeframe. If the person is served in person or by certified mail, they must submit their answer by 10 a.m. on the first Monday after 20 days have passed. The 20 days include weekends and holidays. If the courts are closed on the day the response is due, the response is due the next day the courts are open.
It's also important to understand that, if the served spouse files a response at any point before the divorce is finalized, the other party won’t be able to get a default divorce. If you show up at court on the 61st day expecting to finalize your divorce, but your spouse filed a response the day before, a default divorce isn’t possible. An experienced family law attorney can explain the deadlines and process in further detail.
What are the requirements for winning a default divorce in Texas?
To receive a default judgment in a divorce, the spouse being served with the divorce petition must:
* Be personally served the divorce petition;
* The period in which the party had to answer the lawsuit expired; and
* The citation has been returned and on file for at least 10 days.
What is required by the requesting party in a default judgment divorce in Texas?
The party petitioning for the divorce must have the following items during the default judgment hearing:
* Final Decree of Divorce
* Bureau of Vital Statistics form
* 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
* Prepared to provide evidence for each item you are requesting in your Final Divorce Decree
If you don't already have an attorney, now would be the time to consider retaining one. An attorney will review all of your documents to ensure everything is in order when requesting a default judgment in divorce.
How are child custody and child support handled in a default judgment hearing?
If the party seeking the divorce is requesting anything other than a Standard Possession Order concerning visitation for the other parent, they must prove to the judge why the schedule presented is in the children’s best interests.
In the case of child support, the party seeking divorce must present information about the other party’s income. If it’s unknown, the judge could be asked to base payments on minimum wage.
The judge will ask the person seeking divorce to testify to their case and examine all relevant documents before granting the divorce. The judge will sign off on the Final Divorce Decree, which includes the division of marital assets and debts, child custody and support (if relevant), and spousal support (if appropriate).
What is the difference between an agreed, default, and contested divorce?
If both spouses agree about all issues regarding their divorce, including custody, visitation, and child support, the divorce is uncontested and can be completed by agreement. Both spouses sign the divorce forms.
If the served spouse does not file a response or declines to appear in court, the divorce can be completed by a default judgment without the other spouse's input.
If the served spouse files a response or waiver of service and refuses to sign the Final Decree of Divorce, it is a contested divorce. In this scenario, the case can’t be complete until a final hearing in which the spouse is given at least 45 days advance notice. An experienced divorce attorney is highly encouraged for any type of divorce, regardless if it is an uncontested or contested divorce.
Why is a lawyer important for a default divorce?
A default judgment divorce requires a lot of paperwork, and a lawyer will ensure everything is filled out and filed correctly and promptly. This is important because filing delays or paperwork errors could delay the divorce finalization and leave more time for your spouse to file a response. If your spouse does contest the divorce, you’ll be prepared with a lawyer already privy to your case.
Remember, your spouse can file their response any time before the divorce is complete, even if the 20-day window has passed. A divorce lawyer will handle surprises and ensure your interests are protected.
The Varghese Summersett Family Law Group is here for you. Our specialized and experienced divorce attorneys work relentlessly for the best possible outcomes for our clients. We pride ourselves on our integrity and compassion. Call us for a consultation at 817-900-3220.