Divorce is a type of civil litigation in Texas. This means that one spouse must sue the other to obtain a judgment of divorce. While many divorces are uncontested or resolved through mediation, the spouse named as the defendant always has the right to contest the proceedings and go to trial.
If the defendant spouse never shows up, however, the court may enter a default judgment for the plaintiff. A default does not necessarily mean the plaintiff gets everything he or she wants. With respect to issues like division of property and child custody, the judge must still review the available evidence and make decisions in accordance with Texas law. But obviously, things are much more likely to go the plaintiff’s way when the other spouse is not there to challenge the evidence.
Houston Court Rejects Twice-Married Husband’s Efforts to Undo First Divorce Judgment
Default judgment presumes that the plaintiff spouse properly served the lawsuit on the defendant–and that the defendant then failed to respond in a timely manner, either by choice or due to neglect. On the other hand, if the plaintiff engaged in fraud or misconduct designed to avoid service, the court may be able to set aside a default judgment, or even reopen a previously entered divorce decree. But even here, there are certain rules and deadlines that need to be met.
Here is an illustration from a recent Houston divorce case. This case involves a somewhat unusual fact pattern: The couple divorced, remarried, and re-divorced. The husband then sought to challenge the division of property entered as part of first divorce decree, which was granted by default judgment after he never appeared at trial. The wife said the husband chose not to appear. But the husband claimed he was never notified of the divorce case or the trial date.
Unfortunately, the First District Court of Appeals said it was too late for the husband to challenge the first decree. Texas has a four-year statute of limitations for setting aside divorce judgments, which elapsed before the husband sought review here. But the statute of limitations may be tolled (stopped) if there is evidence of “extrinsic fraud.” Here, the husband alleged such fraud on the part of the wife, but the First District said there was insufficient evidence to support that claim.
Specifically, the alleged fraud turned on the wife’s certification of the husband’s address to the court. At the time, the husband had been convicted of a crime and was due to begin his prison sentence a few days after the divorce trial. The husband argued his wife should have notified the court he would be residing at the prison. But the First District said the law only required her to inform the court of his “last known address” when the default judgment was entered, which she did.
Do You Need Help With a Contested Divorce Case?
Divorce cases should never be decided on legal technicalities. This is why it is important to work with an experienced Houston divorce attorney who will fight to ensure the courts respect your rights. Contact the Law Offices of Tad Nelson & Associates today if you need help with any type of family law issue.