Articles Tagged with dismissal

iStock-545456068-300x184A party may challenge a judgment as void through either a collateral or direct attack. Generally, a Texas divorce decree is only subject to collateral attack if the court lacked jurisdiction over the parties or subject matter.  Other errors must be challenged through a direct attack.  A direct attack can be either a pleading filed in the original case while the trial court still has plenary power or a timely-filed bill of review under a new cause number.  A bill of review is generally the only appropriate method of direct attack after the trial court’s plenary power has expired.

Husband Seeks to Set Aside Divorce Decree

In a recent case, a husband filed a separate lawsuit seeking to have the divorce decree set aside, arguing the marriage and decree were both void due to the wife’s bigamy.

A trial court had denied the husband’s request for annulment based on fraud, but granted his petition for divorce in March 2019.  The court also awarded the wife certain assets.  The following month, the wife was indicted for bigamy.  The indictment alleged she had still been married to someone else when she married the husband in 2017. The husband was ordered to pay her attorney’s fees and spousal support in June 2019.  In July, the wife petitioned for enforcement.

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iStock-1270267953-300x200When a party in a Texas civil lawsuit dies, the case may proceed if the cause of action survives the death of the party. Tex.R.Civ.P. 150. Generally, when the defendant in Texas civil lawsuit dies, the plaintiff may petition for a “scire facias” to require the administrator, executor, or heir to defend the lawsuit.  Tex. R. Civ. P. 152. Pursuant to case law, however, Texas divorce cases are not subject to this rule because they are personal actions that do not survive the death of a party if judgment has not yet been rendered.  Generally, heirs do not take over a divorce case prior to final judgment.  Instead the divorce case abates when a party dies.  This means the court will dismiss the case.

Husband Dies During Divorce Suit

A wife recently challenged a trial court’s determination that her divorce petition abated upon her husband’s death.  The parties had married for about seven years when they divorced in 2000.  In 2018, they got married again.  The parties did not have any children together, but the husband had children from a previous marriage.  The wife petitioned for divorce in May of 2020. The husband filed an answer, but passed away the following January.  The wife sought to have the husband’s children defend the divorce on the husband’s behalf as his heirs.

The trial court found it did not have subject-matter jurisdiction to proceed, because a divorce petition, as a personal action, abates upon the death of either party. A judgment rendered by a court without subject-matter jurisdiction is void.

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