Texas Divorce Attorney Blog
A 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.
In September, the husband filed a petition asking the court to declare the marriage void. He alleged the wife was still married to at least two other people at the time of their purported marriage. He claimed he did not know she was married when he filed for divorce or when the court entered the divorce decree. He argued the divorce decree and order for attorney’s fees and spousal support were also void. He asserted the trial court did not have jurisdiction to grant the divorce and divide the estate because the marriage was void.
The wife pleaded guilty to bigamy on January 14, 2020. When she responded to the husband’s petition in February 2020, she raised a res-judicata defense. The husband argued that his suit was a collateral attack on the void decree.
Trial Court Dismisses Husband’s Suit; Husband Appeals
The trial court dismissed the husband’s case for lack of jurisdiction, finding the divorce court had jurisdiction over the divorce petition and the authority to enter the divorce decree. The court also found that the judgment was not necessarily void if the marriage was. The court pointed out that the proper remedy would have been a bill of review.
The husband appealed.
Appeals Court Affirms Dismissal of Husband’s Suit
The appeals court pointed out the husband could not collaterally attack the divorce decree, because he had not shown it was void for lack of jurisdiction over the parties and subject matter or that the trial court had acted outside its capacity. The trial court’s plenary power had expired; so, the appeals court found a bill of review was the husband’s only remedy to directly attack the decree. The appeals court also noted that the husband’s lawsuit had not been filed in the original trial court that rendered the final divorce decree. The court where his petition was filed therefore did not have jurisdiction to set aside the decree. The trial court had not erred in dismissing the husband’s lawsuit for lack of jurisdiction. The appeals court affirmed the trial court’s judgment.
Bigamy is One of Many Issues that May Complicate Your Divorce; Call McClure Law Group Today to Discuss Potential Issues
Although the wife had pleaded guilty to bigamy, the husband’s case to void the divorce decree was dismissed due to a procedural issue. If you are anticipating a complex divorce, a knowledgeable Texas divorce attorney can see you through the process. Schedule a consultation with McClure Law Group by calling us at 214.692.8200.