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Sometimes, people served with divorce papers do not respond. They may be unsure what to do or they may not want to face the realities of divorce. Failing to respond will not prevent the divorce, however. If a respondent fails to file an answer to a Texas divorce petition, the court may still grant the divorce through a default judgment. Although the petitioner must submit evidence supporting their material allegations and the property division must still be just and right, the divorce may be granted on terms that are unfavorable to the respondent.
A husband recently appealed a default judgment that granted a divorce on the ground of adultery. The parties married in 2008 and had two children together. They entered into a post-marital agreement in 2018. Under that agreement, if the wife filed for divorce because of the husband’s adultery, she would get conservatorship of the children without a geographical restriction, spousal maintenance, and certain property in which the husband held a separate property interest. The wife petitioned for divorce the next year and alleged adultery. The husband did not file an answer.
Default Judgment is Entered
The wife submitted an affidavit to prove up the divorce that incorporated the post-marital agreement by reference. She asked the court to approve the post-marital agreement as the agreement of the parties. The trial court granted the divorce on the ground of adultery. The husband appealed.
In divorce cases, the petition is not taken as confessed if the respondent fails to file an answer. Tex. Fam. Code Ann. § 6.701. The petitioner still has to submit evidence supporting the material allegations and the respondent may challenge the sufficiency of the evidence on appeal. Texas family law allows a court to grant a divorce in favor of one spouse if it finds the other spouse committed adultery, but case law requires clear and positive proof of the adultery.
The husband argued there was no evidence supporting the court’s finding of adultery. The only testimony was the wife’s affidavit. In the affidavit, she stated the husband “committed adultery” and that it caused the break-up. On appeal, she argued the trial court could infer the husband had committed adultery before the post-marital agreement was signed because it included consequences for his adultery.
Appeals Court Finds Insufficient Evidence
The appeals court found the wife’s testimony was conclusory and did not establish the elements of adultery. The appeals court also rejected the wife’s argument that the court could infer adultery from the terms of the post-marital agreement. The appeals court further found the trial court abused its discretion in granting the divorce on the ground of adultery. The appeals court reversed the trial court’s judgment and remanded for a new trial.
Facing Divorce? Call McClure Law Group Today
In this case, the trial court did not have sufficient evidence to support its findings, so the husband was able to successfully appeal. Under other circumstances, failing to answer a divorce petition could have serious consequences. If you have been served with divorce papers, you should contact an experience Texas divorce attorney right away to protect your rights. Call McClure Law Group at 214.692.8200 to discuss your case.