What to do When a Spouse Ignores the Divorce Process

When a marriage becomes irretrievably broken, both spouses generally agree that a divorce is necessary. However, some divorces are contested by one party, which may make the process more difficult and lead to prolonged negotiations and delay the ultimate resolution. What can make things even more difficult is when one spouse refuses to even respond or engage in the divorce process.

When a spouse is dilatory or refuses to participate in the divorce process, here are some helpful tips: 

Service

The first hurdle in any divorce process is actually getting the process started. Once a Petition for Divorce is filed, the petition needs to be served upon the other party. This is typically done by having a Constable or Sheriff deliver the petition and citation to the other spouse. Once the petition and citation are served on the other spouse, the case is ready to proceed.

If a spouse’s location is unknown or if a spouse attempts to avoid service of the petition and citation, the Texas Family Code provides that the spouse who filed for divorce (the petitioner) may file a motion in the court seeking to allow service of the petition and citation on the other spouse (the respondent) by alternate means. If allowed by the court, alternate service may be made by publishing a copy of a notice in a newspaper and by mailing a copy of such notice by registered or certified mail, or by other means ordered by the court. While a spouse may think they can run from service, they can’t hide from a notice put in the local newspaper for all to see.

Discovery

Once the citation, along with proof of service, is returned to the Court, the next step is to conduct any necessary discovery to determine the nature and scope of the marital estate, including assets, liabilities, income, and expenses of the parties.

A party can request that each spouse file a complete and accurate inventory showing the assets and liabilities of both parties and the children involved in the case. The inventory is to be signed under the penalties of perjury by the party filing the same.

The other option is to begin by exchanging documents informally. These types of documents vary for each case, but some of the typical requests are:

(a) Last three years of tax returns;

(b) Four most recent pay stubs;

(c) Documentation regarding the cost and nature of available health insurance coverage;

(d) Statements for the past three years of bank accounts, securities, stocks, bonds, notes or obligations, certificates of deposit, and retirement account statements;

(e) Loan or mortgage applications made, prepared, or submitted within the last three years; and

(f) Copies of any financial statements and / or statement of assets and liabilities prepared by either party within the last three years.

However, the parties also have the ability to conduct further discovery, including a Request for Production of Documents, Interrogatories, Request for Admissions, and conduct depositions.

If a spouse fails to produce discovery requested of him or her, the other spouse may serve a Subpoena Duces Tecum (a subpoena seeking documents) directly to the bank, investment, or lending institution where the spouse has accounts to obtain the documents. This is often the quickest and most reliable way of obtaining complete records of accounts, particularly when a spouse is dilatory or refuses to produce statements from his or her accounts.

Further, the Texas Family Code allows a spouse to file a motion with the court to obtain an order compelling the production of the requested discovery, including the production of documents, answers to interrogatories, answers to admissions, and compel a party’s attendance at a deposition. The Texas Family Code provides that prior to seeking the court’s assistance in compelling a spouse to comply with any mandatory disclosures or discovery requests served upon them, the attorney for the affected party or non-party witness shall confer in good faith in person or by telephone in an effort to resolve the dispute. If efforts to resolve the dispute are not successful, the spouse seeking the discovery may then move forward with filing a motion to compel the production of discovery with the court. The party compelled to file such a discovery motion may also seek attorneys’ fees and costs from the non-producing party which was incurred as a result of that non-producing party’s failure to produce the requested discovery.

Divorce Judgment

Unless a party has filed a Motion for Temporary Orders to seek interim relief while the divorce matter is pending, the first time the court will hear from the parties will likely be at a Pretrial Conference. At the Pretrial Conference, the parties will outline for the court the outstanding issues that are preventing settlement. If a spouse has not been cooperative with the divorce process, or perhaps has never even answered the Petition for Divorce, the spouse seeking to obtain the divorce should be prepared with a proposed Final Decree of Divorce at the time of Pretrial Conference. If the non-moving spouse does not appear at the Pretrial Conference or the court determines the case is ripe for trial, the court may order the case to trial that day and thereafter enter a Default Decree of Divorce. While this is unusual, it is possible to obtain a divorce without the other spouse’s involvement if they outright refuse to participate in the divorce process.

While the divorce process is certainly quicker, easier, and less expensive if both parties are cooperative with the divorce process, the rules and procedures of the Family Court make it is possible to obtain a divorce even if the other spouse refuses to participate.

Having an attorney with the resources and knowledge to give you the best representation is vital to your interest and the interest of your family.  You also want to make sure they will exhaust all avenues and be willing to research, pursue and implement strategies to provide the best possible outcome.

Rob McAngus, Partner with Verner Brumley Parker, P.C., is Board Certified in family Law and his practice is devoted primarily to family law, including high conflict divorce, custody cases, and complex property issues. In addition to being selected on the Board of Directors for the Family Law Section of the Dallas Bar Association; he values your priorities as a parent and works with you to achieve the goals that will help transition your family to a new normal.  As both an adopted child and a member of a blended family, Rob can provide a unique perspective in the practice of family law.

Rob has been recognized in Super Lawyers as a Rising Star in 2016 through 2020, Best Lawyers, and recently The National Advocates recognized Rob as one of the Top 40 Under 40.  He can be reached by calling 214.526.5234 or email at rmcangus@vernerbrumley.com.  Mr. McAngus received his bachelor’s degree cum laude and master’s degree from Baylor University and graduated cum laude from the Dedman School of Law at Southern Methodist University.