Property Division in Texas Default Divorce Judgment


In some Texas divorce cases, a party fails to file an answer to the divorce petition or otherwise participate in the divorce proceedings in any way.  When a court divides property in a Texas divorce, it must do so in a “just and right” manner. TEX. FAM. CODE ANN. § 7.001.  However, to do so, the court must have sufficient evidence of the value of the community estate, even if one of the parties does not participate in the proceedings.  Even if their spouse fails to file an answer, the petitioner in a divorce case must present evidence supporting the material allegations in the petition.  If a trial court divides the property without sufficient evidence of the value of the assets to make a just and right division, the division may be subject to reversal on appeal, even if the appealing spouse failed to respond and the court issued a default judgment.

In a recent case, a husband challenged a default judgment granting his wife a divorce and dividing their property, arguing there was insufficient evidence to support the property division.

No Evidence Supported Division of Property

The wife had filed for the divorce. The husband was properly served, but did not file an answer.  After a short hearing, the trial court entered a default judgment in the divorce suit, granting the wife’s requested property division.  The husband ultimately moved for a new trial. The trial court did not grant the motion and he subsequently appealed.

On appeal, the husband argued the trial court abused its discretion when it divided the community estate, because he alleged the court did not have evidence of the property values upon which to base the division.

The appeals court noted the substantive part of the record was only eight pages long.  The wife testified about certain specific property, both separate and community.  She also testified that each party should be given the assets they had in their possession.  The appeals court noted there was no evidence, however, about the value of the property or of the entire marital estate.  There was no evidence of the amount of any debts.  The appeals court also noted the wife had not presented any evidence showing her proposed property division was just and right and the appeals court was unable to determine if the property division was “just and right” due to the lack of evidence. As a result, the appeals court found there was insufficient evidence of value for the trial court to divide the property.  Finding the trial court abused its discretion, the appeals court reversed the property division and remanded.

Contact a Divorce Attorney in Dallas who Knows Evidentiary Rules

The husband in this case was able to appeal the property division after failing to answer the wife’s petition, but that is not always the case.  When a trial court hears sufficient evidence to support the property division, a default judgment may stand.  A party who participates in the proceeding has an opportunity to present their own evidence, challenge their spouse’s evidence, and preserve issues for a potential appeal.  If you are anticipating a divorce, an experienced Texas divorce attorney can guide and support you through the entire process.  Schedule an appointment with the knowledgeable attorneys at McClure Law Group to discuss your case by calling 214.692.8200.

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