Originally published by The Law Office of Bryan Fagan, PLLC Blog.
In the State of Texas, after you have been served formally with a divorce petition as filed by your spouse, you have until 10:00 a.m. on the first Monday that occurs after the expiration of twenty days to file your response to the lawsuit. If this seems like the most confusing deadline that you’ve ever been presented with in your life then you are not alone. Basically you should count twenty days after your service date, then find the next Monday that falls on the calendar. By 10:00 on that Monday you must have filed an Answer.
Does the following situation ring a bell with you?
What if you and your spouse have been discussing your case for a certain period of time and you know that you and her have agreed on all of the terms of your divorce. Property andchild custody issues have been completely sorted out. Even though you may not be too excited about proceeding with the divorce you nonetheless agree that the terms that you’ve agreed to are fair to both of you and are in the best interests of your kids. Now that it’s all said and done you feel good about what you were able to accomplish.
Now you find yourself looking at a bunch of legal papers that a strange person just handed over to you when you got home from work. A bit confused, you call your wife to see what this is all about. She reminds you that she has hired an attorney to help her and you take your agreements and put them into a format that the judge will be willing to sign off on. She goes on to tell you that the strange man at your house and the legal papers are all a part of the necessary legal formalities. Nothing at all to worry about, though.
You recall having signed a document known as a Final Decree of Divorce that took all of your agreements and put them into writing. You did this with your spouse and she told you that she would take the document to her attorney to file with the judge and that would conclude your case. No muss, no fuss, all done in relatively quick and painless fashion. You could put your feet up and worry about other, more pressing issues your spouse’s attorney told you.
After accepting service and making a phone call to your spouse to receive some reassurance, you hadn’t heard from your spouse or her attorney in sometime. Thinking nothing of it you have gone about your normal routine of seeing your kids and going to work. Nothing major to report one way or another.
One day, however, you get an envelope from a judge’s courtroom with some paperwork inside. The paperwork states “Final Decree of Divorce” at the top. As you look into the document you can see that there are things that you did not agree to included in this version of the Final Decree. Worse yet, as you flip to the back of the document your signature is nowhere to be found- although there is a blank space where you could have signed. Your heart begins to beat a little faster once you see that the judge has signed his name on the decree.
The contents of this Decree are grim as far as you’re concerned. You’re on the hook to pay spousal maintenance, a hefty amount of child support and you do not get to see your kids nearly as often as you had agreed to in the earlier version of the decree. You feel trapped and don’t know what to do or who to turn to. What can be done for you in this type of scenario?
Meeting with a family law attorney to see what the next step is
Now that you’ve figured out that you may
be in some legal trouble, you decide to go seek the advice of a family law attorney. This is the exact thing that you thought you were avoiding by being friendly to your ex-spouse and her lawyer in the first place. You don’t like lawyers and never have. Now you have to grit your teeth and go talk to one anyways to see just how much hot water you are in.
You go in and talk to the attorney who relays to you what I discussed in the outset to this blog post. Your wife properly served you, which required that you file an answer within the time period that I laid out above. You did not do so, which allows your spouse to then go with her attorney with their own order to the judge. She still had to wait the required 60 days to do so, but on day 61 she and her lawyer were in court bright and early in order to get their decree approved by the judge. The lawyer goes on to tell you that the version you signed has no legal weight or significance.
The issue is that the judge didn’t know anything about your agreements or how friendly you were to your ex-spouse or to her attorney. The judge only knows of what your ex-spouse’s attorney stated in that short hearing. The judge looked at the case history and saw that you were properly served, failed to file an answer and that the proper waiting period had been honored. There was no issue, as the judge saw it, on that day to sign the order.
Default Judgments can be reversed
The next part of what the attorney tells you makes you smile, however. You learn that you can overcome a default judgment but that time isn’t necessarily on your side. A motion for new trial can be filed to set aside the default judgment you will need to have the court decide that your failure to file a answer was not intentional nor was the result of a conscious indifference on your part. Additionally, the motion for new trial has within it a defense to your failure to file an answer. Last, the judge needs to determine that if she were to grant your motion for new trial that there would not be any undue delay or injury suffered by your ex-spouse.
Keep in mind that time is not your friend
As I mentioned earlier, time is not on your side when it comes to filing a motion for new trial. You must do so within thirty days of the judge signing your divorce decree. Look to the date as it states on your order, not on the date that you received notice of the decree having been signed. All is not lost if you find yourself in this position but you should do as I suggest in this blog post- meet with an experienced family law attorney who can not only talk you through the elements of a default judgment but can also advise you about your rights it pertains to your specific facts and circumstances.
Questions about motions for new trial in a divorce case? Contact the Law Office of Bryan Fagan
If you have become aware that a default judgment was issued against you in your divorce do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We can speak to you about the possibility of our office representing you in filing a motion for new trial and can appear with you in court to argue that motion.
Your ex-spouse will be in court as well with their attorney arguing against your motion. You should be prepared with your own experienced legal representative to counteract this. Our office has argued motions for new trial in multiple counties in southeast Texas and would be honored to do the same for you and your family.
Our office offers free of charge consultations to people in your position and we will give you honest, candid and complete advice on this subject or any other in family law. Our licensed family law attorneys meet with potential clients six days a week and take great pride in helping people just like you in Houston, The Woodlands, Katy, Baytown, Galveston and in all points in between.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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