What if spouse doesn't show up at final hearing?

[Garymustang1977]

Hello All,

 

I filed for divorce in TEXAS recently (finally) and had my wife served. She was shocked, but not really since I've been talking about divorce for a year. We both are unhappy, but are financially strapped. She threatened to get a lawyer and contest the divorce, but she's done nothing and acts as if all is good. Really.

 

My question is what happens if after the required 61 day waiting period if she chooses not to show up for the final hearing to sign off on the divorce decree? Will the judge just follow the decree with just me present? Will the judge delay the hearing and insist that I give my wife X-number of days to show up to the hearing?

 

Thank you for any info,

Gary

[Ami1uwant]

I dont know the texas laws ....she likely needs to sign it.

[riverratt]

I Kentucky the judge can sign off on it whether the other person is there or not. A person can't stop it in this state.

[carhill]

You might find this document helpful:

State Bar of Texas: Pro Se Divorce Handbook

 

 

If your spouse has not responded legally, nor made a court appearance to contest a matter before the court, it appears your prove-up will go on the uncontested docket and you can appear before the court solo.

 

If your court has a self-help desk/family law center, they should be able to answer your question specifically. Sometimes clerks of the court *may* answer procedural questions, but generally they don't, at least at the courts I've been to.

[Garymustang1977]

Thanks, Carhill, for the Pro Se Handbook link. Excellent guide.

 

My divorce filing is pending and my wife is asking what happens if she contests the divorce? She's also wanting to be able to stay in the house. I had the attorney I met with write in the decree that we'd like to remain joint owners of our property, but be legally divorced. She disagrees with this arrangement for emotional reasons, but it's the only way we'd be able to stay in the house without a judge's ruling for a sale in order to buy me out.

 

Let me explain: We're about 50K in outstanding debts and lack about 40K for the mortgage payoff. The property value is at about 160K. Our incomes have been reduced and we're barely making the monthly house payment and other bills. It's cheaper (for now) to live under the same roof until we can figure out a way to deal with the finances.

 

Her logic is that I deserve nothing since I filed for divorce. I say Texas is a community property state and that I can't simply give her the house and walk away with nothing. Even if I did give her the house she'd not be able to pay the bills without my share of the income. (We both work.) She said she'd contest the divorce and say she's been a victim of emotional abuse (completely not true!), and that she'd file for spousal support. I don't think that's realistic.

 

My thoughts are that when a judge looks at our mortgage payoff and the debt he'll easily see that in order to buy me out we'd have to sell the house. Does my reasoning for remaining joint owners sound like the only viable way to stay in the house for now? I'm completely aware it's not the best emotionally for ex's to live together, but we're civil, and generally get along. I just no longer love my wife and want to move on.

 

I told her that hiring an attorney would only complicate matters and ultimately she'd lose the house (likely) in a sale. The attorney would make money, of course.

 

Thanks for any thoughts,

Gary

[carhill]

If she hasn't filed a timely response with the court to contest matters in the filing, she has no standing with the court and, absent a bi-lateral agreement, the court will generally rule impartially on the facts and filings in the original lawsuit. This would occur at prove-up if the matter is listed on the uncontested docket, AFAIK.

 

So we're clear, if I went to the courthouse today and sought to view your case summary, it's there, right? Your lawsuit is on file with the court. If it is, what's its aging? How does that aging compare to the requirement for filing a timely response? If the time for response has run, then your wife has generally has no standing to file a response, though it is apparently possible to bring other related matters before the court. This is all stuff the self-help desk works.

 

Is your attorney sure that joint ownership is legal after divorce? My understanding is that tenancy of the commons is the general method of taking title for unmarried persons. That's how it works in our jurisdiction. This method of ownership allows for exclusion of right of survivorship applicable to joint tenancy as well as dissimilar ratios of ownership, again impossible to apportion within a joint tenancy, as it is a tenancy of equals. I'd suggest checking into that with your lawyer. The judge may have different ideas about your agreement/proposition if it doesn't agree with their version of 'fairness', even if the matter is uncontested.

 

Here's my checklist:

 

Has the clock for legal response to the lawsuit run?

Is there reasonable confidence in a bilateral agreement being reached, regardless of whether the lawsuit is contested or uncontested?

 

Proceed from there.

[g450]

I did get a divorce in TX and I did not have to show up. She was the initiator. I did anyway just out of principle. Even my Son showed up simply to send her a message and let her know how ehfed up she was.

 

In my case the divorce was amicable and uncontested and we had the same lawyer and no small kids were invloved so my situation may not have any relavance to yours.

 

Had a friend who also divorced in TX and her XH did not have to be there. Same with my current wife when she divorced her XH. In both cases the XH either did not contest the divorce or signed off their rights to the kids etc IIRC.

[Garymustang1977]

If she hasn't filed a timely response with the court to contest matters in the filing, she has no standing with the court and, absent a bi-lateral agreement, the court will generally rule impartially on the facts and filings in the original lawsuit. This would occur at prove-up if the matter is listed on the uncontested docket, AFAIK.

 

Good question, Carhill. I will check today at the law desk. They've been very helpful, actually.

 

Concerning the question about whether remaining "joint owners" is legal, I'd assume so since my attorney wrote that in the decree.

 

Thanks for your good response as always and I'll keep you posted after the weekend.

 

-Gary

[Garymustang1977]

G450 said:

"In my case the divorce was amicable and uncontested and we had the same lawyer and no small kids were invloved so my situation may not have any relavance to yours."

 

Thanks, G450, for your reply. We don't have kids, and this is our first marriage for both of us. I've barely been involved with the court system at all except for one Jury Duty stint many years ago, so I'm going through this with the help of our local law help desk and my "free" legal council (who is a licensed attorney).

 

Our estate is simple, we bought our present house together and we have credit card debt and that's it. We both have worked and each have our own retirement accounts. My sense is that if we're both in agreement with the decree then it's a lot smoother process.

 

My wife feels that if she contests the divorce filing then she'll somehow force me to support her and get 100% of the house which is ludicrous. She's angry I know, but has no grounds for thinking a judge would award her the house. She works, but won't be able to make the bills without my income. She doesn't want to sell the house either, so it's a tough situation.

 

I did read in the Pro Se Handbook from the Texas Bar Association that Carhill linked up and under a section called Division of Community Property there's a mention that the "judge dividing community property and debt may consider many factors, such as the size of your and your spouse's separate estates (we have only one house), and any fault in causing the divorce."

 

In my case I simply don't love my spouse anymore and feel there's no commonality between us. We get along as "roommates" and can be civil, but I've not cheated (adultery), or abused my wife in any way. She's claiming "emotional abuse" which is completely not true. If she has no proof of fault then what do you think are the odds the judge would allow just her word?

 

In your divorce case was there any "fault" that was considered? If that's too personal a question then please don't feel you need to answer.

 

Thanks,

Gary

[Garymustang1977]

Hello all,

 

Well, I went back to the county law office where I originally got the divorce forms and found out that I can get free mediation. Wow, I got lucky. I presented the idea to my wife and she refused to look at the form or even consider it. I feel it's an excellent way for a neutral third party to possibly come up with a settlement plan she can agree to of she's not willing to remain joint owners of our house.

 

Remember, she wants the house 100%, but has no way to pay for it without my added income. Besides, this is a community property state. She says I'm forcing her to hire an attorney, and I'm telling her we're broke and that we can come to an agreement if she'd change her attitude.

 

We have such a simple estate and NO children or investments, or other property other than our jointly purchased house.

 

Anyone here ever used mediation in a divorce situation?

 

Thank you all,

Gary

[carhill]

My exW and I used mediation from a local law school and the process took about an hour and it was then about three weeks for them to complete the MSA which I then had my lawyer review and my exW and I filed with the last of our D paperwork at the courthouse. From the day of our mediation to the court seal on the dissolution was about one month.

[Garymustang1977]

Thank you, Carhill, for your thoughts, as always.

 

As a matter of fact, I mentioned mediation to my wife today (once again) and she immediately dismissed it as useless because the mediator can't give legal advice. Okay, that might be technically true, but certainly I would think a mediator would be able to give us their best advice of what he/she believes might be a fair division under Texas law (community property state). Is this correct?

 

I'm only trying to get my wife to come up with a plan that won't allow a judge to order a sale of our house which she claims she wants to keep. I'd love for her not to have to move, but that brings up the point of how she can buy me out. She simply doesn't have the income to make the bills and mortgage without my income combined with hers.

 

She effectively believes that she can get the house 100% and still make me pay for it. That's ludicrous, of course, in a community property state and with

no children.

 

She says she'll hire a lawyer and I've told her it's a waste of money since our

situation is simple and we'll end up having to sell the house. My thoughts are that any judge will see that in order to pay off the debt and mortgage and to buy me out selling the house only makes sense.

 

She says she doesn't want to live under the same roof as a divorced couple

and I agree that it's not an ideal situation, but it keeps us in control of when we sell the house.

 

My other question then is: When a judge makes a ruling does the court enforce the ruling or rely on the couple to follow through?

 

Thanks for your thoughts,

Gary.

[carhill]

When a judge makes a ruling does the court enforce the ruling or rely on the couple to follow through?

 

In our jurisdiction, the court makes orders pursuant to the final judgment and, if the couple doesn't adhere to the judgment, one or the other will have to seek relief through the court to enforce it. Suggestion: If appropriate in your jurisdiction, have a clause entered in the agreement by the mediator that legal fees incurred by either party to enforce the agreement/judgment will be the responsibility of the party who abrogated the agreement/judgment.

[Garymustang1977]

Thank you, Carhill & Sadintexas (hope you're not sad these days),

 

I appreciate your thoughts, Carhill, about having to go back to court in case my spouse doesn't follow through with the decree. She's procrastinated our talking about divorce for just over a year now (told her mid Sept. 2011) and she's done absolutely nothing, so I've given up and have proceeded. It wouldn't shock me if she still did nothing after the divorce is final. We'll see.

 

That's a great point, Sadintexas, that many attorneys provide an initial free consultation to assess the case. Clearly, her wanting the house and for me to pay for it is a huge red flag. Any attorney, therefore, would probably be blunt about what the outcome is likely to be and that's to sell the house considering the mortgage and debt situation. Thank god we have no children in our case.

 

I've offered mediation and it's free in our county, but she insists it's a waste of time. I've given up trying to be reasonable and patient, so I'm just moving forward. I hope you've found peace in your life. I know it's going to be rough for both of us, but it's what I need to do. Marriage should be a partnership that both partners equally and lovingly share in. But when it's one-sided all the time there's no joy in that.

 

Many thanks,

Gary