If your spouse isn't participating in the divorce process, you can ask the judge for a default judgment. How long does a default divorce take in the state of Texas, though, and what should you know about the process?
Once you make the decision to get divorced, it’s perfectly natural to want to get the whole thing over with and move on with your life. However, a default divorce won't happen overnight.
Texas law requires that all divorce cases go through a sixty-day waiting period after the original petition is filed except in very specific circumstances. This means that, in almost all cases, getting a default divorce will take two months at a minimum.
In reality, though, most default divorces will take longer than sixty days. Let’s take a look at everything you need to know about default divorce in Texas and how long you should expect the process to take.
When a person is involved in a lawsuit in Texas, they are entitled to personal service of a copy of the paperwork that was filed at the courthouse. Since divorce is technically a lawsuit filed by one spouse against the other, this is also true in the case of divorce.
The person who files the original petition for divorce with the court is known as the petitioner. The other spouse in a divorce case is known as the respondent.
The respondent has a specific period of time in which they can file an answer with the court. They can also choose to file a document with the court that waives their right to being served and indicates that they are aware of the lawsuit and have received copies of the divorce paperwork.
If the respondent doesn’t file an answer or waive their right to being served, however, this doesn’t mean that the divorce is indefinitely put on hold.
Instead, it means that the petitioner is able to seek a default judgment in their divorce. This is a judgment that the divorce court enters. Within reason, a default judgment will reflect whatever the petitioner asks for in the divorce without any input from the respondent.
In short, a default divorce is a divorce that proceeds without one party having any say in the final judgment.
The petitioner still has to prove that the division of property and other terms of the divorce are fair. However, if the person being sued for divorce isn’t there to contradict the argument presented by the petitioner and the court finds the petitioner’s proposal to be fair, the outcome will likely be much less favorable to the respondent.
The divorce process begins when one spouse files the original petition for divorce with the court. The state of Texas requires that there is a sixty-day waiting period after this paperwork is filed before a divorce can be finalized except in very specific and rare circumstances.
The reason for the waiting period is to make sure that both parties have plenty of time to consider whether divorce is really something they want to go through with.
Even if the respondent has made it clear that they have no intention of participating in the divorce process or if they haven’t given any indication that they plan on responding to the lawsuit, a divorce cannot be finalized before the sixty-day waiting period has expired.
Under Texas law, there are only two exceptions to this sixty-day waiting period rule, which are:
There are two primary dates that you should be concerned with when it comes to getting a default divorce.
First, there is the period of time that the respondent has to file an answer with the court. This is a period of about twenty days when the respondent can respond to the divorce case.
If they don’t respond before the deadline and the sixty-day waiting period has gone by, you can ask for a default judgment from the court.
There is also a ten-day waiting period to be aware of. Basically, the individual (appointed by the court) that serves your spouse with the paperwork will file a timestamped form known as the “Return of Service” form. This form states the exact time that your spouse was served.
You cannot finalize a divorce for at least ten days after the Return of Service form was filed with the court.
If you're wondering what to expect when it comes to the length of any kind of divorce in the Lone Star State, check out this article about how long a divorce takes in Texas.
The minimum amount of time that it will take to finalize a default divorce in Texas is two months. The only exception to this is if you qualify for one of the exemptions to the sixty-day waiting period rule.
In general, though, it will likely take longer than two months to finalize a default divorce. How long it takes depends on a number of factors, including:
It’s worth noting that a default divorce is not something that happens automatically. Your spouse has to have an ample amount of time to formally respond to your divorce request. Another element that can impact how a default divorce plays out is whether there are children involved in the marriage.
Are you wondering what to expect from a divorce in the Lone Star State? Check out our guide to the divorce process in Texas.
If you don’t have children and you want to finalize a default divorce in Texas, there are a specific set of legal documents that will need to be filed with the court.
After you have filed the initial paperwork with the court, the following steps will be necessary in order for your default divorce to be final:
It’s generally a good idea to seek the counsel of an attorney if you are pursuing a default divorce.
There are different documents that are required if you are pursuing a default divorce with children. Because of the need to make decisions about child custody and child support, there are additional verification points required.
If there are any existing court orders for child support or child custody, you won’t be able to pursue a default divorce. Instead, you’ll have to go through the standard divorce process.
The Original Petition for Divorce you file at the beginning of the divorce will be a different form when you have children compared to the form you fill out when you don’t have children. The reason for this is so that you can make note of the children involved in your marriage when initiating the divorce process.
You will then need to follow the same steps outlined above, including letting the applicable waiting periods pass, checking with the court to make sure your spouse hasn’t filed an answer to the divorce and appearing during a court hearing.
The judge will sign the Final Decree of Divorce at the end of your hearing and will usually also include orders that have to do with your children and related circumstances that are involved in your case.
One order that is normally included in this part of the process is a Standard Possession Order. Another order that is common is an Income Withholding Order. This form relates to your former spouse providing financial child support.
In order to pursue a default divorce, the following needs to have occurred:
When all of those conditions are met, a default divorce can be pursued by the respondent.
There are a number of pieces of evidence that will need to be presented when requesting a default divorce. These include:
For each item that you are requesting in your Final Divorce Decree, you’ll need to be prepared to offer evidence.
For example, if you’re asking for child support you will need to offer information about the income of your spouse. You can ask the judge to base child support on the minimum wage if you don’t know the other parent’s income.
If you have filed for divorce and you expect that your spouse isn’t going to take any action to respond, it is still generally a good idea to work with an attorney.
There is still a lot of paperwork involved even when your spouse isn’t contesting the case or involved in any way. If all of the required documents aren’t complete or have been filled out incorrectly, a judge might not approve your divorce.
When you work with a lawyer, you have a professional on your side that can make sure there aren’t any filing errors. When filing errors are made, it can delay the process of making your divorce final. When delays occur, it means that your spouse has more time to respond and file an answer.
Your spouse can file an answer at any time before the divorce is complete even if the deadline for filing an answer has passed. For this reason, it’s a good idea to talk to a divorce lawyer to help you prepare for the possibility that your spouse will contest the divorce.
Even if you and your spouse talked about the divorce and they agreed that they wouldn’t be contesting any of the issues, you never quite know how people are going to act when something as serious as divorce is involved. After all, a divorce decides how property and debts are divided, not to mention custody and support for children, if applicable.
Essentially, working with a lawyer can help you cover all your bases.
To help keep the cost of divorce down, you might find that hiring a lawyer for some services is a good middle ground. You can have them look over your paperwork and help you understand important deadlines in your case.
If you're deciding whether or not to represent yourself in a divorce, make sure you first read this article about getting divorced in Texas without a lawyer.
A default divorce isn’t automatic if your spouse doesn’t respond to your divorce petition. Before your divorce can be completed, the sixty-day waiting period has to pass (including holidays and weekends.)
Your spouse still has the ability to file an answer anytime before the divorce is final even if they don’t file their answer in a timely manner after they’ve been served.
Once the sixty-day waiting period is over and you have confirmed that your spouse hasn’t responded to being served, you can call the courthouse to ask when they will be hearing uncontested divorce cases or how you can set up a hearing for a default judgment.
The clerk you speak with should be able to inform you about the date and time when your case will be able to be heard.
You’ll want to bring all of the original divorce paperwork with you on the day of the hearing. There are a number of factors that influence which specific paperwork you should bring, including whether you have children and whether an inventory and appraisal are required by the court.
When you arrive at the courthouse, a clerk can help direct you to the proper courtroom where the judge is hearing uncontested divorce cases. You might have to read simple testimony or answer some questions when your case is called. The testimony typically states your name and the name of your spouse, any children involved in the marriage, and the reason that you are filing for divorce.
When a party fails to answer the divorce petition and otherwise isn’t participating in the process of divorce, the divorce proceedings can carry on without them.
If you find yourself in this situation, you might be wondering how the judge will deal with property division.
Under Texas law, the court must divide property in a “just and right” manner. In order to do this, they must have evidence of the community estate’s value. This is the case even if one party refuses to be involved in the proceedings.
The petitioner in the case will need to present evidence in order to support the material allegations that were made in the petition. If there isn’t sufficient evidence of the value of the estate and the court divides the property on this basis, the division of property could end up being subject to reversal or appeal. This can be true even if the court issued a default judgment.
The court expects that some action is taken on a divorce case within a specific period of time after it is filed. If you filed for divorce and then haven’t made any moves to follow through with the process, the court might choose to dismiss the case using what is known as a DWOP (dismissal for want of prosecution.)
Basically, when little or no activity is made in a case, the court will file a DWOP in order to help keep their calendar as clear as possible. They try to keep their docket free from cases that have simply been sitting idle for too long.
How long it takes for a court to DWOP a case depends on the courthouse.
Your divorce won’t be dismissed without warning, though.
When a court notices that your case has been sitting without activity for too long, it will send out a notice that it intends to dismiss the case for want of prosecution. It will also set a hearing date.
If you don’t take any action after you receive this notice, the case will be dismissed by the court.
If you do go to the hearing, you’ll need to prove that you have been taking action to move the case forward. In some courts, it's required that you fill out and submit a scheduling order to the court to set the case for trial.
There are a number of reasons that a court might send out a DWOP notice, including:
If your spouse doesn’t respond to your petition for divorce, a default judgment does not follow automatically. This is something you need to request from the court. If you don’t ask for a default judgment to be made, your case could end up getting dismissed.
You typically have thirty days to file a Motion to Reinstate if your case was dismissed but you’d like it to be reopened. You will need to offer a reason that is deemed sufficient in order for them to open it back up again.
If you do nothing, though, and you still want to get divorced, you will need to start the entire process over again from scratch. This includes filing the original petition for divorce and serving your spouse. You will also have to repay the filing fee.
If you want to learn more about what it means for your case to be dismissed for want of prosecution, check out this article about whether Texas divorce petitions expire.
In some ways, getting a default divorce can be more straightforward than getting a divorce when your spouse is involved. This is particularly true if you expect that your spouse would contest the case if they were participating in the proceedings.
That being said, there aren’t really any types of divorce in Texas that are hassle-free. The laws surrounding marriage and divorce in Texas are complicated, and the documents you need to provide in order to obtain your divorce can be difficult to navigate on your own.
For this reason, it’s almost always a good idea to work with a lawyer in some capacity when getting a divorce. In some instances, such as amicable divorces that involve no children, no property, and no debt, couples can fairly easily pursue divorce on their own without the expense of a lawyer. In most other cases, though, the help of a legal professional can help ensure that your rights are protected and that you receive a favorable outcome once the divorce is final.
One of the best things you can do for yourself when you’re getting divorced is to read up on the family laws in your state. This can help you know what to expect from the process as well as help you understand what your rights and responsibilities are under the law.
If you’re looking for more information about the laws in Texas surrounding marriage and divorce, check out our blog at TexasDivorceLaws.org.
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