Whether you have been served with divorce papers by a spouse (or you’re a third party who has been served due to a connection to the case), it’s generally a good idea to seek legal advice. The state of Texas has established specific procedures and timelines for responding to lawsuits. Not abiding by these requirements could affect your rights regarding assets, property, business concerns and spousal support; responsibility for marital debt; and wishes regarding child custody and support.
In the following article, we’ll answer some common questions about responding to divorce papers and take a look at the process involved with responding to a divorce petition. The rights and perspectives of the divorce petitioner vs respondent will also be considered, and we’ll touch on the involvement of third party, non-participants who may have an interest in the case.
The petitioner in a Texas divorce case is the spouse who initiates the divorce process by filing an Original Petition for Divorce. The respondent in a divorce case refers to the other spouse, in other words, the person “responding” to the Original Petition for Divorce. The respondent must file a Respondent’s Original Answer after being served with the Original Petition for Divorce in order to have a say in the process, and they must do so prior to the state’s 20-day deadline. If the petitioner contests the divorce, they also have the option to file a Counter-Petition for Divorce stating what orders they want the court to make pertaining to the divorce or child custody in Texas.
The deadline for filing an answer to a divorce petition varies from state to state. In Texas, the respondent must file an answer by 10:00 a.m. on the Monday following 20 days from service of the Original Petition for Divorce (including weekend days).
If a spouse has been formally served with divorce papers or signed a waiver of service, their failure to respond to divorce papers by the deadline could result in a default judgment of divorce. Keep in mind, there is a 60-day waiting period to get a divorce in Texas, so the court wouldn’t render a default judgment until the 60 days have passed.
Petitioners shouldn’t assume that a default judgment is a slam-dunk during this period either. If the respondent has good cause to file an answer past the deadline, the court would generally be open to hearing it—as long as the case is still pending.
Serving someone with divorce papers can get tricky if they don’t want to be found, move without leaving a forwarding address or do a darn good job of avoiding the process servers who knock on the door. However, under Rule 21a of the Texas Rules of Civil Procedure, the party filing suit has a duty to serve and notify the other party of the lawsuit. As Americans, we all have a right to due process.
Now, you may be able to convince the court to agree to alternative service (service the court deems reasonably effective in giving the respondent notice). This may include service by leaving the paperwork with anyone over the age of 16 at their residence, through a valid social media account, via certified mail, by posting at the local courthouse or publishing the notice in a local publication or through other means agreed to by the court.
In order for a judge to agree that alternative service is appropriate, it must be shown that the process server made a certain number of attempts to serve the respondent in person. A typical rule of thumb is three attempts, at which point the process server will prepare an affidavit to file with the court indicating a failure to serve by conventional means.
We’ve also seen situations where people intentionally send divorce papers to a spouse at an old address where the spouse no longer resides. Technically they have NOT served that party because the party didn’t receive the petition for divorce. At the end of the day, if a party doesn’t formally serve their spouse with divorce papers, the lawsuit doesn’t exist.
No, not if the other party wants to get a divorce. Texas is a no-fault divorce state, which means the parties to the divorce don’t need to prove who is at fault in the break-up of a marriage in order to get a divorce. In fact, the party who wants the divorce doesn’t need to prove fault of any kind. They can file for divorce based on the belief that the marital relationship is insupportable (it can’t be fixed)—often referred to as irreconcilable differences in other states.
We have also had clients ask us, “Can’t the court order my spouse to go to counseling?” Technically, they can but you typically don’t see courts interfering in the wishes of a party as to whether or not they should get a divorce. It does happen, we have seen it, but it’s pretty rare where a court would order parties to go to counseling or whatever the case may be to try to reconcile a marriage.
If you’re wondering how to respond to divorce papers without an attorney, I hope you either (A) are a divorce attorney yourself (in which case you probably wouldn’t be asking that question …), or (B) don’t want to contest the divorce in any way and don’t share any assets or any children with the petitioner.
I always think it’s a good idea at the very least to have a legal consultation with a family law attorney to find out what steps you need to take to respond and what forms you need to fill out and by what dates. Now, you could do nothing, which means your spouse can get a default divorce, along with everything they ask for in their petition (at the court’s discretion). Keep in mind there’s no going back if you change your mind once the divorce is finalized unless you can prove a meritorious claim or defense that would have yielded a different result.
Want to learn more about filing for divorce in Texas? Check out the five essential steps in this past blog.
You’ve been served with divorce papers, so what happens next? We alluded to some of the steps in the process above but let’s take it step by step here.
Again, if you will be contesting the divorce in any way, it’s critical to consult an attorney to review the divorce petition with you and weigh your options. While Texas residents aren’t required to submit every bit of evidence pertaining to the divorce in the original petition, the petition typically includes:
Depending on where the divorce was filed, the petition may have various orders attached to it, including standing orders, temporary orders, temporary restraining orders and/or orders of protection (when family violence is alleged). Upon review, make a detailed list of the items you would agree to and those you would like to dispute.
As noted above, you need to move quickly and file an answer if you want to avoid a default judgment in your case. In Texas, a respondent must file a Respondent’s Original Answer on or before 10:00 a.m. on the Monday following 20 days from service of the Original Petition for Divorce (including weekend days).
This is where experienced family law attorneys can really help facilitate the process. Based on your specific circumstances and goals, you and your attorney should be at a point where you generally agree on the strategy and approach to your case. With that in mind, your attorney can help you draft your answer, which states your intention to have a say in your divorce, and file it with the court.
If you dispute any of the information or requests your spouse has made in the divorce petition—meaning your divorce is contested—you can clarify your requests in a Counter-Petition for Divorce. For example, if you believe property your spouse has claimed as separate should be community property or that a different option for child custody, visitation and access would work better, you can make your wishes clear in the counter-petition.
As previously noted, some parties have no interest in responding to a divorce petition after they have been served, which they have the right to do. In court, this is referred to as conscious indifference, which basically means the party could care less about the lawsuit and doesn’t plan to do anything to protect their claims or propose defenses.
Again, if you decide not to respond to a divorce petition, your spouse can get a default judgment of divorce—meaning the court can grant a divorce without a hearing—once the 60-day waiting period for divorce has passed. Not responding to the petition also means you will have to accept all the conditions your spouse has requested, as long as the court agrees to them. Once the divorce is finalized, you can only go back and dispute the court’s orders in limited circumstances.
It’s really important to get temporary orders put in place as soon as possible during a divorce. In most cases, the petitioner will include a request for temporary orders when they file the petition for divorce, which must be provided to the respondent along with the petition.
Temporary orders lay out how spouses are supposed to handle certain matters while the divorce is pending. The orders may include who will remain in the primary residence during the case, how financial matters will be handled (who pays what bills, how money will be allocated, limitations on spending, what if any spousal support will be paid, etc.), directives regarding the protection of marital property, where children will reside and how visitation, access and child support will be handled, among other matters.
If the spouses agree on temporary orders, their attorneys can submit a request to the court to formalize the orders. If the parties don’t agree on the orders, they can request that a hearing be scheduled to modify them. Hearings on temporary orders usually occur within 14 days after a petition for divorce has been filed in Texas.
With temporary orders in place, the next phases of the divorce begin, including the discovery phase. The discovery period involves the exchange and/or examination of financial documents, property and other evidence pertinent to the case. Discovery must be finalized within a specific time period prior to mediation or trial, depending on the complexity of the case. Your attorney can provide information on the discovery timelines that apply to your case.
Once the discovery period ends, it’s time to head to mediation or trial. Texas family courts usually require couples to go through mediation to try to resolve their differences before scheduling a trial. If mediation is unsuccessful, a trial date can be set.
If you were doing an online Google search for the question above or the terms, “responding divorce serving as non participant,” this section is for you! There are different types of non-participants or third parties in divorce cases, those who are being sued in relation to the case and those who have been called to act as a witness regarding some aspect of the case.
If you’re someone who is being sued in relation to the case, the first thing you should do is hire an attorney. Third parties in these scenarios may include business entities or an individual who is the subject of a wasting claim or other form of fraud that involves a marital estate. Depending on the nature of the allegations, the lawsuit in question may involve civil torts that are brought up in a divorce case.
Civil torts involving allegations like fraud have specific requirements and affirmative defenses that must be sworn to and pled. If you’re being sued in a case like that, I highly recommend consulting an attorney who specializes in civil tort cases.
Third parties can also get subpoenaed for a deposition relating to a divorce. They are not only required to appear but also bring along any documents that are requested in the subpoena. Most lawyers are considerate of people’s time when issuing a subpoena to attend a deposition or testify in court, meaning they try to give a party enough notice to make arrangements to get off work or schedule childcare.
Again, if you receive a subpoena for a deposition or to testify in court, you are required to participate. If you have any questions whatsoever about responding to a divorce deposition as a third party, what will be expected of you and what the ramifications will be if you don’t comply, it’s a really good idea to speak with an attorney.
If you live in the Dallas / Fort Worth area and have questions about divorce or responding to a divorce petition, the Sisemore Law Firm is here to help. A divorce attorney Fort Worth from our firm would be happy to review your case and discuss your options.
To schedule a confidential case review, you can call our office at (817) 336-4444 or connect with us online.