Default in divorce, filed for new trial, Do I have to redo divorce papers again?

Asked over 2 years ago - Austin, TX

never served, lawyer went missing, picked up file only to find alot of missing documents which I had to get copies notice of service...ex husband left all debt to me which I cannot afford.

Attorney answers (4)

  1. Rick J. Kennon

    Contributor Level 4


    Lawyers agree

    Answered . If you have already filed for new trial, you need to get a hearing set as soon as you can. If you don't set a hearing, the motion for new trial will be denied by operation of law. After the new trial is granted, the case will proceed just as if the default divorce decree had not been entered. No new divorce case will need to be filed, but you will need to get pleadings on file to set forth your allegations in the divorce. Please feel free to contact my office for a free 30 minute consultation. Rick Kennon 472-2431.

  2. Matias Jose Rueda


    Contributor Level 4


    Lawyer agrees

    Answered . You may not have to refile the divorce if the Motion to Reinstate is timely filed. If case is reinstated then it might be possible to revisit the previous orders. You may contact my firm directly to speak further with our attorneys. Mat Rueda Law Firm 512-931-4LAW (4529)

  3. Min Gyu Kim

    Contributor Level 12


    Lawyer agrees

    Answered . In Texas, motion for new trial must be filed with the court within 30 days from the date the judge signed an order. The same rule generally applies to appeals unless a post judgment was filed. (Also, Texas provides 2 other types of appeals, restricted appeals that allow an appeal to be filed within 6 months of court order if no other post judgment actions were filed and a bill of review, which is an equitable appeals remedy)

    With that said, were you defaulted or were you the party (by your attorney's negligence) failed to served citation/ waiver of service on the other party. Depending on which side you were on, the burden changes as well as the necessary steps you will have to take once the court grants the new trial. Again in your situation, whether or not the judge will grant the new trial depends on the burden that you meet based on if you were the party to be served or to serve.

    Based on your statement that you were left with all the debt, it sounds like you were the party that was defaulted against. This means that for him to get the default then, he either, did serve you with citation (which would include the original petition and document that tells you how much time you have to answer, etc) but you or your attorney failed to file an answer or make an appearance in court.Or, he attempted to serve you but could not for whatever reason and he sought a substituted service which subsequently no answer or appearance was filed. Depending on the factual circumstance of the default, the burden of seeking the new trial will change.

    Sorry for the vague answer, but more facts are required

    Consult a local family law attorney who is familiar with new trial (and appeals if necessary) to assist you.

    Good luck and wish you success

    Min Gyu Kim (Peter)

    The statement above is general in nature and does not constitute legal advice, and in no way be interpreted as... more
  4. Joseph M. Oswald

    Contributor Level 4

    Answered . In a divorce suit, any motion for new trial must be filed prior to or within 30 days after the judgment or other order complained of is signed. You could consider filing a Motion to Set Aside Default Judgment as well. No, you would not need to file for divorce again if the motion is granted. If the motion is granted the court will proceed as if no judgment were taken. Given timing requirements, it would be a good idea to consult with an attorney to discuss your options.

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Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

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