Any person who is on the receiving end of a lawsuit in Texas is entitled to what is called “personal service.” Personal service is where a constable or a private process server comes up to the person on the receiving end of a lawsuit, asks if they are that person, and personally hands them a copy of the original petition and citation. The citation states that the person has been served with a lawsuit in a specific county in Texas. The citation also states “you have until on or before 10:00 a.m. on the Monday next following the expiration of twenty days after you were served in which to answer the lawsuit.”
Simply put, a default divorce is when the person who was served with the divorce petition fails to file a written answer within the requisite time period. A written answer is a simple document filed with the Court stating you are answering the lawsuit. If an answer is filed, then a default divorce cannot be obtained.
A divorce in Texas has a mandatory sixty day waiting period before you can finalize the divorce. This means that on day sixty-one, if the person on the receiving end of the divorce has been personally served with the divorce petition and the period in which that person has to answer the lawsuit has expired; the petitioner in the divorce may obtain a default divorce.
When requesting a default divorce, it is required that evidence be presented for each item you are requesting in the divorce decree. For example, if you are requesting the other parent’s possession schedule with the children be less than the Standard Possession Order found in the Texas Family Code, evidence must be presented to show why the specific possession schedule you are presenting is in the children’s best interest. At the conclusion of all of the evidence, assuming all prerequisites have been met and elements of the law established, the Judge will have the option to grant the divorce.
Given what could happen in terms of a default divorce, it is important to seek legal advice and file an answer if served with a divorce petition in Texas.