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How do I Get a Default Divorce While Incarcerated in Texas?

How do I Get a Default Divorce While Incarcerated in Texas?

Full question:

I am incarcerated and have filed a petition for divorce with a waiver of appearance. My wife didn't show up to our court date to sign the final decree. She was served by a sheriff and doesn't contest the divorce. She even called the court coordinator and told her she was in agreement but could not attend the hearing that day. So, the date has been rescheduled for later on this month. I know she really doesn't want to sign anything. She is only playing games. I do have a friend with a Power of Attorney to take care of all my legal matters. My question to you is: how do I finish my divorce without being able to show up for court?

Category: Divorce
Date: 04/07/2025
State: Texas

Answer:

Even if there is a complete agreement of the parties on all parts of the divorce action that are all contained in a proposed Agreed Decree of Divorce (signed by all), at least one of the parties must appear before the Judge and give sworn testimony. This is called a "prove up." If the Judge determines that the testimony meets the legal requirements for a divorce, the Judge will will sign the Decree of Divorce.

Unlike other civil cases in which a defaulting defendant is presumed to admit the petition’s
allegations regarding liability and liquidated damages, the allegations in a divorce petition are not
admitted by a defaulting defendant. Tex. Fam. Code Ann. § 6.701 If a respondent in a divorce case fails to answer or appear, the petitioner must still present evidence to support the material allegations in the petition. It may be possible to have a default divorce decree granted when one party fails to answer a divorce complaint. Local court rules vary by court. I suggest calling the clerk of court to inquire about procedures for default divorce decrees and whether testimony may be given at the prove-up by way of a sworn written statement.

The following is a Texas statute:

§ 6.701 FAM. Failure to Answer

In a suit for divorce, the petition may not be taken as confessed if
the respondent does not file an answer.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

How to file for divorce if your spouse is incarcerated?

To file for divorce when your spouse is incarcerated, you can submit a petition to the court where you reside. Ensure that you serve your spouse with the divorce papers, which may be done through a sheriff or other authorized individual. If your spouse does not contest the divorce, you may be able to proceed without their presence in court. Check your local court's rules for specific procedures regarding incarcerated individuals and any necessary waivers.

What does waiver divorce mean?

A waiver divorce refers to a situation where one spouse agrees to forgo their right to appear in court during the divorce proceedings. This often occurs when both parties consent to the divorce terms and one spouse is unable to attend due to circumstances like incarceration. The waiver allows the divorce to proceed without both parties being present, provided that the necessary legal requirements are still met.

How can an inmate file for divorce while incarcerated in CA?

In California, an inmate can file for divorce by completing and submitting the necessary forms to the court. They must serve the divorce papers to their spouse, which can typically be done through a sheriff or a designated process server. If the spouse does not respond or contest the divorce, the inmate may be able to obtain a default judgment without appearing in court. It's essential to follow the local court rules for filing and service.

What happens if one party doesn't show up for a divorce hearing?

If one party does not show up for a divorce hearing, the court may still proceed with the case. If the absent party has been properly served and does not contest the divorce, the other party may be granted a default divorce. However, the court may require evidence or testimony to support the claims made in the divorce petition. Always check local rules to understand the implications of a no-show.

Is it possible to get divorced without going to court?

Yes, it is possible to get divorced without going to court if both parties agree on the terms and one party waives their right to appear. This typically involves filing the necessary paperwork, serving the other spouse, and potentially obtaining a default judgment if the other party does not contest the divorce. However, local court rules will dictate the specific process, so it's important to verify the requirements in your jurisdiction.

What does the purpose of a waiver mean?

The purpose of a waiver in legal terms is to voluntarily relinquish a right or privilege. In divorce proceedings, a waiver allows one spouse to forgo their right to appear in court, enabling the divorce to proceed without both parties being present. This can help expedite the process, especially in cases where one spouse cannot attend due to incarceration or other reasons.