So your spouse filed for divorce and you decided to ignore it. Now your spouse received a default judgement and you received a final divorce decree with a bunch of things you did not agree to. Don’t worry there might be a way to set the default agreement aside.
First off, you might be wondering what a default judgment is. A default judgement is a judgment entered by the court based on a defendant’s failure to appear in court or file an answer within the time allowed. The court will basically award whatever is asked for, within reason, by the person who filed for the divorce. This can be done because the other spouse is not there to contradict the facts or argue their side.
A default judgement can be reversed; however you must move quickly. You must file a motion to set aside default judgment and a notice of hearing within thirty days (30) of the judge signing your divorce decree. When a default judgment is attacked by a motion for new trial, the critical question is: “Why did the defendant not appear?” Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012)
The Supreme Court of Texas established the standard for setting aside a default judgment in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Under the Craddock test, post-answer as well as no-answer default judgments should be vacated and a new trial granted when the defaulting party establishes that:
- The failure to answer or to appear was not intentional, or the result of conscious indifference, but was due to a mistake or an accident; Failing to file an answer intentionally or due to conscious indifference means “the defendant knew it was sued but did not care.” Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006).
- The motion for a new trial sets up a meritorious defense. In other words, a meritorious defense is one that, if proved, would cause a different result in the case.
- Granting a new trial will not occasion delay or work an injury to the prevailing party. In other words, you must prove to the court that granting your motion will not result in an injury to your ex-spouse.
When a defaulting party meets all three Craddock-test elements, a trial court should set aside the default judgment and order a new trial.
If you have become aware that a default judgment was issued against you, do not hesitate to contact The Werner Law Group. We will be happy to speak to you about getting your dispute resolved. Leslie can be reached by text seven days a week at 361-648-6888.