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What do I have to do if I get served?
Many divorce and custody cases begin amicably. Some stay that way.
Even some of those that begin amicably have one party or the other served with papers at the beginning of the case. Sometimes it’s a strategy move, sometimes it’s a miscommunication between the attorney and the client, and sometimes it’s a mistake.
Most of the time it's none of those. Most of the time the service is done because the filing party does not want the case to be amicable or is not sure that it can be.
Service of Process means service of the Petition that has been filed along with a Citation from the court. The Petition plus the Citation equals Process.
In Texas State Court, if you are served with Process, you have a certain amount of time in which to answer the suit. That amount of time is until “10:00 a.m. on the Monday next after the expiration of 20 days from the date of service.”
This time period is different for cases filed outside of Texas, and for Federal Cases. Virtually everything in family law – divorces, custody cases, child support cases, grandparent cases, etc. – is done in State Court.
So, if you get served with a Texas divorce or custody petition, even if you are outside of Texas, your deadline to answer is 10:00 a.m. on the “Monday next after the expiration of 20 days from the date of service.” Failure to answer by that time can put you in default.
If you are in default, you are subject to a default judgment. A default judgment is like losing by forfeiture in a sporting event.
In sports, if you are scheduled to play and you don’t show up, you lose by forfeit. In law, if you have been served and you do not answer, you can lose by default.
If you lose by default, it means that only the opposing party is presenting evidence to the court. In a divorce, a person in default could end up with little or none of the assets of the marriage – including his or her own 401K or pension. In a custody case, including a custody case within a divorce, a defaulted party may end up with little time with the children, higher than ordinary child support, and few rights.
It doesn’t take much to not get defaulted. If you have been served, all you have to do is answer the suit. An answer is basically any filing with the court that puts the court on notice that you do not want to have a default judgement taken against you.
If an answer is filed, it must be filed with the court in which the case is pending, and should be served on any other parties to the case or their attorneys. To serve it on the other party, if he or she has an attorney, all you have to do is fax it to them. Keep your proof that you sent the document by fax.
But, there are times when you don’t want to file an answer. There are times that you want to file more than an answer. And there are times that you need to file something prior to your answer and then an answer. It can get confusing.