Default Divorce in Texas: How It Works

Sometimes a spouse simply won't take part in the divorce. They get served and do nothing, or they've moved away and can't be found. Texas law doesn't let one spouse block a divorce by ignoring it. When the other spouse doesn't file an answer, the case can move forward as a default divorce.

A default divorce still has rules, though, and skipping a step can lead to the judgment being thrown out later. Here's how the process works.

Step 1: Proper service

Everything in a default case depends on proper service. The court must be able to see that your spouse received legal notice of the divorce. There are several ways to get that done.

Personal service

The most common method is personal delivery of the citation and petition by a sheriff, constable or certified private process server. The server then files a return of service with the court, showing when and how your spouse was served.

Substituted service

If your spouse is avoiding service, you can ask the court to allow another method, such as leaving the papers with an adult at the home, attaching them to the front door or, in some cases, sending them electronically through social media or email. This requires a sworn statement describing the attempts to serve and a court order approving the alternative method.

Citation by publication or posting

If you truly don't know where your spouse is after a diligent search, the court may allow citation by publication or, in some divorce cases, by posting. Before a court allows it, you usually must show what you did to find your spouse: checking last known addresses, contacting relatives and friends, searching online and on social media, and similar steps.

Service by publication or posting brings extra requirements. The court will generally appoint an attorney ad litem to try to locate and represent the absent spouse's interests, and the evidence presented at the final hearing gets closer review. Courts are also more limited in what they can order about property and support when the spouse was never personally served.

Step 2: Waiting for the answer deadline

After service, the respondent generally has until 10:00 a.m. on the Monday after 20 days to file an answer. A few other timing rules matter too:

• The return of service generally must be on file with the clerk for at least 10 days (not counting the day it was filed) before a default judgment can be granted.
• The 60-day waiting period from the filing of the petition still applies, with limited exceptions for family violence.

If your spouse files an answer, even a short letter to the court in some cases, the divorce isn't a default anymore. Your spouse is entitled to notice of the final hearing.

Step 3: The military status affidavit

Federal law, the Servicemembers Civil Relief Act (SCRA), protects active-duty servicemembers from default judgments while they're serving. Before a court can enter a default, the petitioner must file an affidavit or declaration stating whether the respondent is in military service and the facts supporting that statement.

You can usually check a person's active-duty status through the Department of Defense's SCRA website using their name and date of birth or Social Security number. If the respondent is on active duty, the court may need to appoint an attorney for them and may have to delay the case. Our article on military divorce in Guadalupe County covers these rules in more detail.

Step 4: The default prove-up hearing

In most lawsuits, a defendant who doesn't answer is treated as admitting the facts in the petition. Divorce is different. In Texas, a divorce petition can't simply be "taken as confessed." The petitioner still has to present evidence supporting the divorce and the requested orders.

At the prove-up, the petitioner usually testifies about:

• Residency (six months in Texas and 90 days in the county).
• The ground for divorce, usually insupportability.
• Any children of the marriage and why the proposed custody, possession and support terms are in their best interest.
• The property and debts, and why the proposed division is just and right.

The petitioner also typically files a certificate of the respondent's last known mailing address so the clerk can mail notice that a default judgment was signed.

A default decree should match what was asked for in the petition. If the decree gives the petitioner more than the petition requested, that part can be vulnerable to challenge. That's one reason the petition should be complete from the start.

Step 5: After the decree is signed

Once the judge signs the decree, the divorce is granted. But a default judgment is easier to attack than an agreed or contested judgment. The absent spouse may have options to set it aside.

Motion for new trial

A respondent who learns of the default generally has 30 days after the judgment is signed to file a motion for new trial. Texas courts usually grant a new trial after a default if the respondent shows:

• Not answering was not intentional or the result of conscious indifference, but an accident or mistake.
• They have a meritorious defense, meaning a real dispute about the issues.
• Granting a new trial won't cause unfair delay or harm to the petitioner.

When service was by publication, the rules give the respondent a longer window to seek a new trial.

Restricted appeal and bill of review

Even after the 30-day window, a respondent may be able to challenge the judgment through a restricted appeal, usually within six months, if there's an error visible in the court record, such as defective service. A bill of review is a separate lawsuit that may be available for a longer period in limited circumstances.

The best protection for the petitioner is a default that was done correctly the first time: good service, a complete record and a decree that tracks the petition.

Defaults and property

A default doesn't mean the petitioner gets everything. The judge still must divide the community estate in a just and right way and must find any custody terms are in the children's best interest. Expect the court to ask questions if the proposed division looks lopsided. Our article on dividing assets in a Guadalupe County divorce explains how judges approach property.

If retirement accounts are being divided, you'll still need proper orders, such as a QDRO, to carry out the division. Plan administrators don't treat a default decree differently.

If you were the one who missed the deadline

If you were served and didn't answer, act fast. File an answer as soon as possible, even if the deadline has passed; if no default has been granted yet, a late answer usually still protects you. If a default has already been signed, the deadlines for a motion for new trial are short. See what to do when you're served with divorce papers.

Attorney Jesus R. Lopez handles default divorces in Seguin and throughout Guadalupe County, including cases where the other spouse can't be found. Free consultations are available in English or Spanish.

Frequently asked questions

Have questions about your situation? Talk with a Seguin divorce lawyer. Consultations are free, by phone or in person, in English or Spanish.

Related guides

This article is general information about Texas law, not legal advice for your situation. Laws change, and every case is different.