You have been served with a petition for divorce and it states you have to file an answer by 10:00 a.m. on the Monday next after the expiration of 20 days. However, you have been working things out with your soon-to-be-ex spouse and you guys have agreed upon everything. Your spouse tells you that the service part is just part of the legal process and you do not have to do anything because you have already signed the agreed decree. However, once everything is said and done the district clerk’s office mails you a copy of the decree and it is not the one you signed. In fact, it contains terms that are the complete opposite as to what you agreed. You are shocked and you have no idea what to do; according to the final decree mailed to you, your ex-spouse is taking the children, the home, and the car.
You contact an attorney and find out that your ex-spouse actually waited for your answer period to expire and then went before the judge and asked for a “default” divorce on the basis of you not answering or making an appearance. The judge, not knowing the background of the case and relying upon the ex-spouse’s allegations, granted the default divorce and now you must work to get that reversed.
The good news is you do have a form of recourse. You can file a motion to set aside the default judgment and a motion for new trial. In order to be successful on this type of motion, it is important that you know the grounds for doing so. Luckily, several appellate courts have discussed this test, also known as the Craddock elements. It was recently discussed again by the Texarkana 6th District Court of Appeals in In the Matter of the Marriage of Lucas Woods and Jessica Woods and In the Interest of L.K.L.W. and S.B.L.W., Children. This Court held that to analyze whether a motion for new trial should be granted and to set aside a default judgment, the trial courts must look at the following factors: “(1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or accident; (2) the motion for a new trial sets up a meritorious defense; and (3) granting the motion will occasion no delay or otherwise work an injury to the plaintiff.”