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.
 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.