In a standard divorce, a spouse serves his or her partner papers, and battle commences —or in the best-case scenario, it goes the uncontested route. However, in cases where the partner is served papers and doesn’t respond in a timely manner, you may be eligible for a default divorce. In this article, we’ll help you understand what a default divorce is, how to file for one, the standard timeline, and what happens when children are involved.
What is a Default Divorce?
A default divorce (also known as a “No Answer” divorce) is a form of uncontested divorce in which the spouse being served papers does not respond within 20 days plus the following Monday at 10 a.m. Filing for a default divorce is a necessity for many people trying to finalize their separation and move on with their lives. However, there are a number of factors to keep in mind if you’re considering this route, including whether it’s an appropriate course of action for your specific situation.
Is Default Divorce Right for You?
A default divorce is a suitable option if:
- Your spouse is missing
- Your spouse refuses to communicate
- Your spouse is evading service
On the other hand, this may not be the right choice for you if any of the following apply:
- There is uncertainty as to the assets held by your missing spouse
- You need to uncover evidence relating to your missing spouse and their assets
- You seek a restraining order, protective order, or wish to pursue a claim for family violence
- Your missing spouse is on deployment in the military
If after reviewing these circumstances, you feel a default divorce is right for you, continue reading to explore the timeline, how to file, and what happens in the case of children.
Timeline for a Default Divorce in Texas
Before a court will consider your request for a default judgement, the following waiting periods must be observed:
- 20-day Waiting Period: As previously stated, your spouse has 20 days plus the following Monday at 10 a.m. to respond once served with divorce papers.
- 60-day Cooling-Off Period: The standard 60-day cooling-off period that applies to all Texas divorce cases also applies to default divorce. That clock begins ticking the moment the petition for divorce has been filed.
- 10-day ‘Return of Service’ Period: The individual who serves your spouse with divorce papers will file a timestamped Return of Service form stating that papers have been served. The Return of Service form must be filed for 10 days before you can proceed.
It’s important to note that all three of these timeline requirements must be met to proceed with a default divorce. If your spouse does not respond within the 10 or 20-day waiting periods, they can still respond within the 60-day cooling-off period. So, at a minimum, the process could take a little over two months to complete, but holidays and court backlogs can extend the time required to complete a default divorce.
How to File for a Default Judgement in Texas
You’ll be required to provide the following to the court when requesting a default judgement:
- A sworn statement of the material facts – including reasonable efforts made to contact your spouse (including social media, telephone, email, and last known address).
- Proof your spouse was served by posting to the courthouse door, citation by publication in a local newspaper, or by a constable or other process server.
- Proof that your spouse is either not in the military, or in the military but not on deployment.
- A draft order for substituted service (if applicable)
- A motion and order for an Ad Litem, a third-party who will search for your spouse if you have children.
- A draft order for default judgement for the court to sign
Once you’ve provided these items to the court, you’re able to schedule a final divorce hearing.
Pursuing a Default Divorce with Children in Texas
Obtaining a default judgement with children born or adopted of the marriage requires a distinct set of documents and verification points regarding child custody and child support.
In the event that there are existing court orders for child custody or child support, you will need to consolidate the existing orders with the divorce before you can proceed.
Whenever children are involved, the courts want to ensure any decision is made in each child’s best interests. Therefore, the Decree must fully contain all the provisions in relation to the child custody and child support, which is in the best interest for each child.
To protect your spouse’s interests, the courts are also likely to appoint a lawyer known as an “Ad Litem” to make reasonable efforts to find your spouse. If the Ad Litem fails to find your spouse, he or she might be asked to testify at the final hearing to consider:
- Possession and access, child support, medical support, and dental support contained in the decree are in the best interests of each child
- What rights your spouse has to each child’s property (if any)
- Ongoing care, supervision, and support needed for a child with a disability
- Evidence or testimony showing your spouse is refusing to reply to divorce papers or communicate with you on child custody issues
At the culmination of the hearing, the judge will sign the final decree and determine any additional orders regarding each child.
From start to finish, it’s in your best interests to have a legal expert at your side to help you smoothly navigate the process and clearly understand all outcomes for you and each child. Contact Uncontested.com to speak with a lawyer today.
Division of Property in a Default Divorce in Texas
As with children, the courts will likely appoint an Ad Litem if you and your spouse acquired a home or other substantial asset(s) during the marriage. This is once again done to protect your spouse’s best interests. The Ad Litem may also testify in court on behalf of your spouse to ensure a fair and equitable division of property.
What Are the Risks of a Default Divorce?
Before taking any legal course of action, it’s wise to know the risks involved. A default divorce is no different. Following are a few risks to consider before pursuing a default divorce:
- If additional methods of service are required, or the judge decides to appoint a lawyer to represent your missing spouse, then you will likely be responsible for these costs.
- If at some point after the divorce has been granted, your missing spouse decides to reappear then he or she may attempt to appeal the divorce by filing a Motion to Set Aside, Motion for New Trial or a Bill of Review.
- Should your missing spouse decide to answer or show up to the courthouse, then your divorce will either become a contested or uncontested divorce and you will be disqualified from proceeding as a default divorce.
Do You Need a Lawyer for a Default Divorce in Texas?
It’s highly recommended to seek professional legal support to guide you through the process. Having an expert on your side ensures that all paperwork is completed and filed properly. This will save you the time and inconvenience of having to refile and/or return to court. Uncontested.com specializes in getting you through your default divorce efficiently and effectively.
Take our online questionnaire to see if you qualify for a default divorce today!