Question:

My spouse lives in a different state, and I am trying to get a divorce.

I sent her the divorce papers via certified mail and got the return that she received the papers, but have not received a return or any sort of filed response.

Will a default divorce eventually be granted?

Answer:

The laws relative to proper service for purposes of securing a default judgment against your spouse vary from state to state.

Some states consider service by mail proper and some states do not (they may require a sheriff/constable or private process server to physically hand the papers to your spouse).

Further, securing a default judgment — even if mail was a proper form of service in that jurisdiction — is typically a little tricky.

Default judgments involve constitutional due process rights (the right to have proper notice and opportunity to defend oneself in court), which are closely protected in favor of those in your spouse’s position in most instances.

In Texas, for example, there has to be proof of service filed with the court for a certain period of time (here it is 10 days) before you can even seek a default. Further, you have to file a Motion for Default Judgment or some other type of motion containing certain specific provisions and attach certain items before a court can properly enter a default.

One of the items is an affidavit that relates to whether or not the person is in the military, because if they are military, they may have additional defenses available to them to avoid you securing a default against them.

It is always best in these situations to consult an attorney in the jurisdiction in which the case is pending to ensure you are complying with the procedural requirements.

At times, you may be able to convince a judge to enter a default even though you haven’t properly served the person and complied with the requirements, but that default would typically be subject to being set aside at a later date upon proof of it being faulty. Moreover, taking a default itself even having done all of the procedural steps properly isn’t always that easy.

Certain issues, such as custody, could require you to put on particular types of evidence to support whatever it is you are asking the judge to rule or decide upon.

If you don’t know the laws of that particular jurisdiction, it could be difficult or impossible to properly present your motion or your case even in a default setting.

Remember, I am unable to provide you with anything more than divorce tips for men, so please consult a domestic litigation attorney in your area to obtain specific advice as to the laws in your state and how they impact your potential case.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, contact Cordell & Cordell.