A default judgment in a divorce case happens when the spouse who has been served with divorce papers fails to respond in a timely manner or to show up on the scheduled court date. In such a case, the spouse who filed can ask for a default judgment. Because you are not there to defend your stance and to fight for your parental and financial rights, you can expect the default judgment to be far from a settlement that you would have signed off on. There are, however, situations in which a new divorce trial can be granted. If your divorcing spouse got one over on you by obtaining a default judgment before you recognized what was happening, you need the professional legal guidance of an experienced Harker Heights divorce attorney on your side.
Consider an Example
Sometimes a spouse who is not on the up and up will obtain a default judgment outside the boundaries of fairness. Consider the following:
Your spouse serves you with divorce papers, which tell you that you must file a response by 10 AM on the Monday after the expiration of 20 days (the court sometimes enjoys using confusing language).
In the meantime, you and your soon-to-be-ex have been working out divorce terms between yourselves, and you both sign off on the agreements you have made.
Your spouse assures you that you do not have to worry about the service notification because you have already reached an agreement.
You receive a copy of your ex’s default judgment from the district clerk’s office in the mail, and it in no way resembles the terms you signed off on.
In the end, your spouse took it upon himself or herself to push the boundaries of your timeframe for a response, and then asked the court for a default judgment that is in keeping with his or her best interests. This is a cautionary tale and represents one of the many important reasons why you need professional legal counsel in your corner from the outset.
Motion to Set Aside the Default Judgment
All hope is not lost. You do have legal recourse, and it involves filing a motion to set aside the default motion and a motion for a new trial. The appellate courts in Texas have done their homework on the matter, and they have set forth three important factors upon which the decision – of whether or not a default judgment should be set aside and a new trial granted – is determined, including:
The spouse’s failure to respond was due to a mistake or accident and was neither intentional nor the result of indifference.
The spouse’s motion for a new trial may end in a different result (the default judgment may not stand).
The spouse’s motion does not cause the spouse with the default judgment to suffer any damage, such as an untimely delay (it is the burden of the spouse with the default judgment to prove that it does).