The decision to file for divorce is never an easy one. Even when the marriage has irretrievably broken down, the actual process of going through a divorce can still be overwhelming. And it is not uncommon for some people to respond to their spouse filing for divorce by…doing nothing.
This raises a few questions: What happens if your spouse does not respond to your divorce petition? Can you still get a divorce without their participation? Do you automatically get to decide the terms of the divorce? While every divorce case is unique, there are some basic answers to all of these questions under Texas law.
Default Judgment and Divorce
A divorce is a formal legal proceeding. Even when the parties agree on the need for a divorce and have negotiated all of the relevant terms of their separation, one spouse must still file a legal pleading known as an “Original Petition for Divorce” in the county where you or your spouse lives. The petition is a type of civil lawsuit where you ask for a divorce and certain related orders, such as a division of marital property and determinations regarding child custody and child support.
Once you file the Original Petition with the court clerk, it must then be formally served on your spouse. You do not serve the petition yourself. This must be done through the local sheriff, a third-party process server, or certified mail. In the case of an uncontested divorce, your spouse can sign the necessary court forms in advance, in which case service is not necessary.
Once served, your spouse then has until 10 a.m. on the first Monday after 20 days have passed to file a formal response to your Original Petition, which is called an Answer. In other words, say you filed your Petition on Wednesday, November 1, 2023. Your spouse’s deadline to file their Answer would then be Monday, November 27, 2023, at 10 a.m.
If your spouse fails to file an Answer by the deadline, you may then ask the court to enter a default judgment on your petition. A default judgment simply means the court will proceed to decide your case and grant a divorce without the participation of your spouse. You will still need to appear in court and answer questions from the judge. The judge will not simply “rubber stamp” all of the relief requested in your petition.
It is also important to note that even after the Monday-after-20-days deadline for filing an Answer expires, you still must wait at least 60 days from the date you filed your petition before a court can grant a default judgment of divorce. This 60-day waiting period is mandatory in all Texas divorce cases, unless your spouse has been convicted of family (domestic) violence or you are under an order of protection for family violence.
Your Ex May Still Be Able to Appeal Following a Default
Your spouse may still file a response at any point before the 60-day waiting period expires, in which case the court cannot grant a default judgment. But if your spouse simply fails to show up at all, then they have effectively waived their right to be heard and have their arguments considered by the court. This generally includes the right to appeal the final judgment.
That said, Texas appellate courts can consider what is called a “restricted appeal” in default cases. A restricted appeal means the spouse who failed to answer the divorce petition or participate in the hearing that led to the default judgment has filed an appeal within 60 days alleging a legal error that is “apparent on the face of the record.”
A recent Texas Court of Appeals decision, Cervenka v. Cervenka, offers a useful example. In this case, a wife filed a divorce petition. She served her husband, who failed to respond or participate in the subsequent hearing before the trial court. The trial court then granted a default judgment. The husband subsequently filed a restricted appeal.
The appellate court found there were a few errors apparent on the face of the record. For example, the trial court divided the marital property based solely on the wife’s testimony. She did not provide any actual estimates regarding the value of the property or any other factors that must be considered by the court when making a division. The trial court also miscalculated the correct amount of child support the father owed under Texas law. The appellate court therefore corrected that error and returned the case to the trial court for a new hearing regarding the division of marital property.
Contact League City Family Law Attorney Tad Nelson Today
Even if you do not expect your spouse to respond to your divorce petition, it is still a good idea to work with an experienced Galveston family law attorney, as there are still a number of legal and procedural steps that must be completed. Contact the Law Offices of Tad Nelson & Associates today if you need assistance with any divorce-related legal matter.