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Default Judgment in a Texas Divorce

wedding ringsIn a recent Texas divorce decision, a woman appealed from a no-answer default divorce judgment that concluded her marriage. The couple had married in 2002 and had two kids. In 2013, the father petitioned for divorce and asked for a disproportionate percentage of the marital estate. He wanted to be appointed the sole managing conservator of the kids with the mother being ordered to pay him child support and obtain a life insurance policy on herself, naming him the sole beneficiary.

A return of service was filed that showed the mother was personally served. However, the mother didn’t answer or appear. The record was minimal until the father got a hearing to obtain a default judgment. Only he appeared. He testified as to what he believed had happened in connection with the separation. He claimed the mother had moved to another state, and she hadn’t seen the kids since moving but called the kids on the phone. He testified he had no insurance for the kids. He didn’t offer further evidence by testimony or through documentary proof.

Afterwards, the court signed a divorce decree that divided the marital property and appointed the father sole managing conservator for both kids. It ordered the mother to pay child support and awarded her retroactive child support. Additionally, retroactive medical support was ordered, and the mother was required to buy a life insurance policy on herself in which the father would be named sole beneficiary.

There was a clause stating that the parties warranted there were no obligations not mentioned in the decree, and they agreed to indemnify each other. Another clause stated they’d both read the judgment and found it to be a just and right division of their joint property. It said they both signed voluntarily, but the mother’s signature wasn’t there.

The mother appealed. She argued there was insufficient evidence to support the property distribution, the attorneys’ fees award, and the other orders against her.

The appellate court explained that under section 6.701 of the Texas Family Code, a petition can’t be taken as confessed when the other spouse doesn’t file a formal answer. The father had to give evidence to support his major claims, even though she hadn’t answered. The appellate court reviewed under an abuse-of-discretion standard with two parts. One was whether the lower court had enough evidence upon which to use its discretion and the other was whether the lower court had made a mistake in applying its discretion to the facts.

The mother argued that the lower court abused its discretion because there wasn’t any evidence on which it could base its division of the marital estate, and the appellate court agreed. Under Section 7.001 of the Texas Family Code, the lower court was supposed to make a just and right division of community property in which it paid attention to the parties’ rights and those of the children of the marriage.

Although it had wide latitude, dividing the property was an abuse of discretion if there wasn’t enough evidence to support the decision. It also reversed the child support award because this award could be materially influenced by how the marital estate was divided. The appellate court also agreed with the mother there was no evidence to support the indemnification clause.

It is important to secure legal representation for divorce proceedings to make sure your rights are protected. If you need to get a divorce, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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