From an occasional, ongoing series, devoted to your state, your area
We get questions
What if I have legally filed for divorce, and done everything I know, but my spouse refuses to sign the papers?
Basically, what you’re asking is, “Can I be held in a marriage against my will?”
The short answer is no.
Requirements must be met
However, the full answer is, “It depends.” All your paperwork must be legal, with all the T-s crossed and all the I-s dotted–and this includes proper service on your spouse.
Obviously, the easiest way to ensure everything is proper is to retain a compatible, trained and experienced attorney who knows Texas family law inside and out as well being familiar with all local court rules and the various judges.
For example, working on your own as a pro se litigant (that is, without benefit of an attorney), your original petition (and any ancillary papers) could be flawed. If that is the case and your spouse has hired a competent attorney, it’s highly likely the attorney has pointed out such flaws to your spouse. In such cases, responding spouses may resort to “dragging their feet,” perhaps as a stall tactic to improve their legal positions–or simply as retaliation, knowing that doing so will cause anxiety and frustration.
In other words, if “the other side” knows the court is likely to dismiss the case, there’s no pressure because there’s little threat of a “default judgment.” Once spouses are legally served with notification of the petition, they have 20 days to respond. In lieu of a proper, legal response, the plaintiff files a motion for default judgment, and the court is almost sure to award the plaintiff all requests.
Why do respondents fail to reply? It could be for reasons previously mentioned, or it could be the respondent doesn’t realize the gravity of notice from the court (that is, “hoping it will just go away”)–or it could be something along the lines of simply being sick of the whole thing and therefore has no objection to the plaintiff’s eventual obtaining of a default judgment.
One last aspect: it could also be because the recalcitrant spouse knows (or suspects) the wife is pregnant. Texas law allows the suit to be filed, but it can’t be finalized until after the baby is born. This is an attempt to ensure all child-related matters are appropriately addressed.
One of the spouses must have been living in Texas for at least six months before filing–and in the same county (where the suit is filed) for at least 90 days. Military personnel can begin counting from the first day of being stationed in Texas, and that counts even after deployed overseas, if deployed from an installation in Texas.
This is the first “test”: the court must be able to find that it has jurisdiction over the case, otherwise the case will be dismissed. Those whose duration has not met the requirement will have to until it is met before filing the case.
Correct and accurate filing
The next thing is to ensure the paperwork is correct and proper service is executed, either by officers of the court/county sheriff’s department or by a legal, authorized process server. You don’t want to find out later that papers were delivered to a spouse’s former address or to another person with the same name. In such cases, even a default judgment can be successfully vacated (set aside).
Unable to locate: Texas missing spouse
A related issue arises when a spouse’s whereabouts is unknown. The spouse might be deliberately hiding or simply wandered off years ago, to parts unknown. Either way, the solution is via the so-called Texas Missing Spouse divorce, one variant if children are involved, another if no children are involved. In either case, the court will have rules about notification such as posting on the “courthouse door” or “notification by publication.”
For further information, you can find some answers in the state bar’s handbook for pro se divorce. But even there, the bar cautions: “This handbook provides a general introduction to representing yourself in a simple (uncontested) divorce. Although you have the legal right to represent yourself in any court proceeding, the process can be quite complex and, if at all possible, it is recommended that you have an attorney represent your interests, especially if domestic violence, child custody or large amounts of property are involved.”
No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.
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