Default

Divorce

If you have been separated from your spouse for a long period of time or if your spouse refuses all reasonable attempts to get divorced, a Default Divorce may be the right option for you.

 

If you think you need a default divorce, contact us for a consultation.

About Default Divorce

What is a "Default Divorce"?


When you file for divorce In the State of Texas, you are required to notify the other party, so that he or she is made aware of the lawsuit and is provided an opportunity to seek legal counsel or contest the divorce.
A Default Divorce occurs when one party is missing or fails to answer the suit for divorce within the required time-frame. From the day your spouse is served, your spouse is allowed at least twenty (20) days + the next Monday at 10:00 a.m. to file an answer. If your spouse fails to file an answer in time and all other requirements have been met, then you can proceed with a “No Answer” Default Divorce.
As with a regular divorce, in the State of Texas, there is still a sixty (60) day mandatory cooling-off period beginning from when the Petition for Divorce is filed.




What services do you provide?


We charge $1500 for a Default Divorce for up to three (3) hours of legal services. Court costs and the cost for service of process, which vary in each County, will be charged separately. Legal services may include:
- preparing the legal documentation (Waiver of Service, Affidavit of Non-Military, Affidavit of Last Known Address, Petition for Divorce and Divorce Decree).
- arranging service.*
- setting and attending the final hearing.
- Conferring with the Judge, Staff Attorney as per local county rules
* If substituted service is required, we will charge $500 for up to one (1) hour of additional legal services.




Is a Default Divorce right for me?


A Default Divorce may be right for you if:

  • If your spouse is missing
  • If your spouse refuses to communicate
  • If your spouse is evading service
A Default Divorce may not be right for you if:
  • there is uncertainty as to the assets held by your missing spouse.
  • you need to conduct discovery to uncover evidence relating to your missing spouse and his or her assets.
  • you seek a restraining order or protective order or wish to pursue a claim for family violence.
  • your missing spouse is in the military.




What if we have children?


The court has full discretion to decide the method or type of service appropriate for your case. At an additional cost to you, the judge has full discretion to appoint a lawyer to make reasonable efforts to find your spouse and describe the method in which this was done. If your spouse can’t be found the lawyer may also be called to testify at the final walk-up hearing as to the parenting plan described in your Divorce Decree and whether or not it is deemed to be in the best interest of each child. Some major considerations will include:

  • What type of custody / possession / access / child support / medical insurance is in the best interests of each child.
  • If the children own property, what rights your spouse may have to the property (if any).
  • If any child is disabled, the ongoing care / supervision / support needed for the child.
  • testimony or evidence provided to the court showing that your spouse refuses to reply to divorce papers or communicate with you on child custody issues.




What if we have real property?


The court has full discretion to decide the method or type of service appropriate for your case. If there is any real property or retirement assets, then in all likelihood, the judge will appoint a lawyer to make reasonable efforts to find your missing spouse and to testify at the final walk-up hearing as to the fair and equitable division of the marital estate. The costs of this appointed lawyer will be passed on to you.




What is substituted service?


In the event that your spouse cannot be served, you will be required to provide an Affidavit describing any knowledge of his or her last-known whereabouts and what efforts you have made to locate your spouse.
The judge will hear your evidence and may make a decision, at his or her discretion, to allow for a substituted method of service. Substituted service may include:

  • service by publication in a local newspaper such as The Hart Beat,
  • posting the divorce documents to the courthouse door or
  • certified mail to a different location.
If substituted service is required, we will charge an additional $500 for up to one (1) hour of legal services.




What are the risks of a Default Divorce?


There are a few risks that you need to consider before attempting 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. In this case, we will give you a consultation to find out which type of divorce is best for you.





Lauren Carrington Smyth

Managing Partner

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Carrington Smyth PLLC is licensed to practice law in Texas (2005), Washington, D.C. (2006) and England & Wales (2011).

 

Principal Law Office based in San Antonio, Texas

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