The Walters Gilbreath, PLLC Blog

What To Do When Served With a Divorce or Custody Lawsuit?

by Brian Walters on April 28, 2017

No. However, most people opt to do so.

Being served with a lawsuit is one of those few events in life that nobody forgets. Many thoughts go through someone's mind when served:

  • What happens next?
  • Do I need a lawyer? If so, which one do I hire?
  • How do you tell your children? How do you tell your family and friends?
  • What does all of the legalese mean?
  • What do I have to do and when?

We answer these questions in this article. If you need more information on related topics we have created:

Getting Served

In Texas there are two documents that must be served on the party (at the same time) for service to be proper:

1. Citation; and, 2. an Original Petition.

legal-1302034_960_720-1.jpg"Citation" is a formal notification issued by the Court that tells you that you are being sued. An "Original Petition" is a document filed by the party initiating the lawsuit. This will lay out the relief requested. This is why the first person to file a petition is called a Petitioner. The person being served is called a Respondent since they must respond to the lawsuit.

In a divorce, the Original Petition will state the basis for the Petitioner wanting the divorce to be granted. The most common basis for divorce is for insupportability ("no fault"). Other grounds for the divorce include cruel treatment, abandonment and adultery. If it is a custody case, the documents served will also state the basis for the Petitioner's suit and a basic list of what the Petitioner wants.

You may also be served with a Precept and Notice of Hearing (tells you that a hearing has been set and provides a date, location, and time for the hearing to take place). Also a Temporary Restraining Order (is a restraint on your ability to do a list of things at the beginning of the case) can be issued. A Court may issue a Temporary Restraining Order without hearing testimony. Some common restraints found in a TRO include the restriction against removing the children of the suit from their schools, moving or withdrawing money from financial accounts, making disparaging comments about the other party in the earshot of the children, hiding the children from the other parent, etc.

Filing an Answer

After being served, the Court requires that the Respondent file an "Answer. Filing an Answer is vital if you want to ensure that you will get your day in Court and ensures that a default judgment won't be issued against you. The Answer is a direct response to the Petition filed against you (discussed above) and is a short document that typically denies or admits all or some of the items alleged in the petition. You must file and serve the answer on the Petitioner, or if they’ve hired an attorney, you must serve it on their attorney directly. This can all be overwhelming but ignoring this deadline won’t do you any favors in the long-run so be sure to take this deadline seriously.

In Texas, a responding party has about twenty (20) days to file an answer, but technically a party must file an answer by Monday at 10 o'clock a.m. after the expiration of 20 days after the date that the party was served with the petition and citation; any answer filed after this deadline will be considered to be untimely.

The TRO: Temporary Restraining Order

A TRO is governed by Texas Rules of Civil Procedure Rule 680 and Texas Family Code §150.001. Many parties that are served with a Temporary Restraining Order feel overwhelmed and confused. The words “restraining order” can just sound scary. Some people may even feel offended that their spouse has sought one.

A Temporary Restraining Order must be served on you. If you have an attorney, you may agree to have the TRO served on your attorney. A TRO is a set of restrictions issued by the Court that is meant to protect both parties from acts or omissions of the other, especially if a spouse is alleging that the other committed domestic violence. Just like the name implies, a TRO is not indefinite but lasts only 14 days. A TRO may be issued without any testimony being first heard by the Court.

In Texas, the Courts aim to protect the parties, their children, and their property. In furtherance of this goal, courts typically restrict each party in some of the following ways:

  • Getting your children and moving with them to another state
  • Withdrawing the money out of joint bank accounts
  • Canceling or changing insurance policies, such as health and auto
  • changing the beneficiaries on a life insurance policy
  • Committing family violence
  • Making disparaging comments about the other spouse in the presence of the children
  • Withdrawing the children from school without the other parent’s consent
  • Removing money from a retirement account
  • Hiding or secreting the children from the other parent
  • Communicating (or otherwise threatening) the other party via mail, phone, in-person, or in any other manner
  • Destroying, removing, or encumbering property without the permission of the other

There are many restrictions that could be ordered that are not listed here; this is not a comprehensive list.

"What if the Court Lacks Jurisdiction Over Me?"

Jurisdiction is just another word for ‘power.' Jurisdiction is a Court’s power to hear and decide a case. For a Texas court to have jurisdiction in a divorce, it must have something called personal jurisdiction over the parties. In other words, the Court must have the power over the persons in the suit to issue binding orders. Just ask yourself: “Would it be fair for this Court to have jurisdiction over me?”

How does a Court Establish Personal Jurisdiction in Texas?

In Texas, Personal Jurisdiction exists where one of the following is present:

  • Domicile (Residing with the Intent to remain): The Respondent is domiciled in the state;
  • Contacts: The Respondent has minimum contacts with the state;
  • Business: The Respondent does business in the state;
  • Presence (Cannot be fraudulently lured into the state): The Respondent was personally served while in the state; or
  • Consent (Could be given in a premarital agreement): The Respondent agrees to submit to the Court’s jurisdiction.

If you do not meet any of the above requirements for personal jurisdiction, be sure that you wish to submit to that Court’s jurisdiction before you file an answer. If you file your answer before you object to the Court’s jurisdiction, it will be the equivalent of consenting to the court’s jurisdiction, which would give the court Personal Jurisdiction over you.

Just because the Court lacks personal jurisdiction over you does not mean that you should not respond to the lawsuit, however. If you’d like to object to the Court’s personal jurisdiction, a Special Appearance must be filed before or concurrent with the answer. A Special Appearance is a pleading that tells the Court that although you are indeed responding to the lawsuit, you are not submitting to the Court’s personal jurisdiction. You may want to contact an attorney for assistance concerning a Special Appearance and the requirements to file one.

Am I Automatically Divorced Once I file My Answer?

A common misconception is that if the Respondent agrees to be divorced, the Respondent can merely file an answer and then the divorce is granted. Filing an answer is just the beginning. A divorce won’t be granted until the judge signs the Final Divorce Decree (in Texas typically parties must wait 60 days before a judge will sign). In other words, if you have been served with divorce papers, expect to be involved in the suit for at least a few months.

What is a Counter-petition?

Once you have filed your answer, you may even wish to file a Counter-petition for divorce. Essentially, a counter petition is when the responding party (after or concurrent with filing his/her answer) sues the Petitioner back. This document is completely optional. Think about it like this: When your spouse served you with the divorce papers they were petitioning the Court to grant them a divorce based off of the information that they provided in their petition. That means that you will be on the defensive in the sense that you will be admitting, acknowledging, or denying and thereby litigating only the Petitioner’s claims and sought relief. So, if the respondent is not successful and the suit gets dismissed for any reason, that is the end of the suit. You do not then get to continue the lawsuit on their claims.

In a Counter-petition, the Respondent has the opportunity to state his/her sought grounds for divorce and any legal allegations against the petitioner. Therefore, if you file a counter petition, neither party may simply drop the suit without both parties agreeing to it, and both parties’ claims are allowed to be heard by the Court. This is why filing a Counter-petition could be a major step towards protecting your rights in the divorce proceeding.

Are you required to hire a lawyer?

No. But divorces and custody cases can get complicated and often have complex issues, hire an attorney may be in your best interests. If any of the following describe your situation, you should probably hire an attorney:
  • There are children involved in the suit and custody, support or visitation is in dispute.
  • There is a large community or separate estate.
  • You suspect that your spouse has committed fraud against the marital estate.
  • There are complex property division issues in the divorce (including property abroad).
  • The division of assets is in dispute.
  • The other party has an attorney (and you don’t).
  • Issues or fear of international child abduction exists.
  • You have been served with a Deposition Notice.
  • You want more detailed and personalized pleadings to be filed on your behalf.
  • You would like to apply for spousal maintenance.
  • Your spouse has requested spousal maintenance, and you do not believe that you should either have to pay it or if you’d like
  • the amount of support to be less.
  • You would like guidance on the legal process.

In other words, if you and your spouse are not in 100% agreement on how the property will be divided into final orders and (if there are children) the custody and visitation schedule (and amount of support to be paid), then you may need to consult with an attorney to better protect your rights. We can help.

Topics: Child Custody, Divorce Law