Not every spouse participates in a divorce. Some refuse to sign anything, some move away and stop answering calls, and some simply ignore the papers after a constable hands them over. For families in New Braunfels and Comal County, the good news is that a spouse’s silence does not keep you married. Texas allows a default divorce when the other spouse is properly served and fails to respond. A divorce attorney can help you make sure the case is built correctly so the decree holds up.
What Is a Default Divorce?
A default divorce happens when:
- You file a petition for divorce,
- Your spouse is properly served with legal notice, and
- Your spouse does not file an answer or otherwise appear by the deadline.
The court can then proceed without your spouse’s participation. This is different from an uncontested divorce, where both spouses take part and sign an agreed decree. In a default, only one spouse is participating.
Service Must Be Done Correctly
Everything in a default case depends on valid service. If service is defective, the judgment can later be set aside, sometimes long after you thought the divorce was final.
Personal service
The most common method is personal delivery of the citation and petition by a sheriff, constable or certified private process server. The server files a return of service with the court. Under Texas rules, the return of service generally must be on file for at least ten days, not counting the day it was filed and the day of judgment, before a default judgment can be granted.
Substituted service
If personal delivery fails despite real attempts, the court can authorize another method that is reasonably likely to give notice, such as leaving the papers with an adult at the home or, in some circumstances, delivery by electronic means. This requires a motion supported by a sworn statement describing the attempts.
Service by publication
If you truly cannot find your spouse after diligent searching, the court may allow citation by publication. You will need to show what you did to look for them: contacting relatives, checking social media, searching public records and so on. When a spouse is served by publication and does not appear, the court generally appoints an attorney ad litem to represent their interests, which adds a cost. Publication also gives the absent spouse a longer window to challenge the judgment later.
The Answer Deadline
Once served, your spouse generally has until 10:00 a.m. on the Monday after 20 days have passed from service to file a written answer. Even a simple letter to the court stating they disagree can count as an answer. If an answer is filed at any point before the default judgment is signed, you cannot proceed by default and the case becomes either agreed or contested.
What You Must Prove in a Texas Default Divorce
Texas Family Code § 6.701 provides that in a divorce, the petition may not be taken as confessed if the respondent does not answer. In practical terms, that means the judge needs evidence, usually your testimony at a short hearing, to support:
- Residency. That you or your spouse met the six-month Texas and 90-day county requirement.
- Grounds. Usually that the marriage is insupportable.
- The waiting period. That at least 60 days have passed since filing.
- Property and debts. What exists and why your proposed division is just and right.
- Children. Conservatorship, possession and child support that serve the children’s best interest, along with evidence of the other parent’s income or a basis for presuming it.
Your proposed decree also cannot give you more than what you asked for in the petition. If you want the house, the petition must request it. This is one reason the original petition should be drafted with care.
Required Paperwork for a Default
A default divorce usually needs several documents beyond the petition and decree, such as:
- The return of service or court order for alternative service
- A certificate of the last known mailing address of the defaulting spouse, so the clerk can mail notice of the judgment
- A sworn statement or declaration about whether the defaulting spouse is in active military service, as required by the Servicemembers Civil Relief Act
- Child support and medical support information, where children are involved
If your spouse is on active duty, special protections apply. The court may need to appoint an attorney for the service member or delay proceedings. See military divorce for more.
Default Divorce With Children
Default does not mean the absent parent loses all rights. The judge decides conservatorship and possession based on the children’s best interest, and Texas presumes that appointing both parents as joint managing conservators is in a child’s best interest unless evidence shows otherwise. A parent who has disappeared or has a history of family violence may be treated differently, but you need evidence to support that.
Child support is calculated from the obligor’s net resources. If you do not have evidence of your spouse’s income, Texas law allows the court to presume a wage level based on a full-time minimum wage job, which may be lower than what your spouse actually earns. Gathering pay information ahead of time helps. Our divorce with children page explains these issues.
Default Divorce and Property
A default decree divides the community estate just like any other decree. You need to identify the property and debts and explain the proposed division. If your spouse has a retirement account, you may need a QDRO, and you may need information about the plan. Real estate should be described with its legal description, not just a street address.
Can the Absent Spouse Undo a Default?
A spouse who did not answer may try to set aside the default, usually through a motion for new trial filed within 30 days after the judgment is signed. Texas courts generally ask whether the failure to answer was intentional or the result of conscious indifference, whether the spouse has a meritorious defense, and whether granting a new trial would cause undue delay or harm. Later challenges may be possible if service was defective or by publication.
The best protection is a default judgment built on clean service, a complete record and a fair decree.
How Default Divorces Work in Comal County
Default cases in Comal County, like those in Guadalupe, Hays and Kendall counties, are filed with the district clerk and heard by the district courts. Each court has its own procedures for setting default prove-up hearings, so check with the clerk or the court coordinator about how to get on the docket. Timelines are discussed on our divorce timeline page. If your spouse has simply refused to take part, our page on whether a spouse can refuse a divorce may also help.
Talk With a New Braunfels Divorce Attorney
A default divorce can be a straightforward way forward when your spouse will not engage, but only if every step is done correctly. Our family law team can handle service, paperwork and the final hearing in Comal County and neighboring counties. Call (830) 302-4071 for a free consultation. Se habla español.
Frequently Asked Questions
How long does my spouse have to answer a divorce petition?
Under the Texas Rules of Civil Procedure, a served respondent generally must file a written answer by 10:00 a.m. on the Monday after 20 days have passed from the date of service. If they miss that deadline and the 60-day waiting period has passed, the petitioner may ask for a default judgment.
Does my spouse automatically lose everything if they don't respond?
No. In a Texas divorce, the petition cannot simply be taken as confessed. The judge still requires evidence, still applies the just and right standard to property, and still decides children’s issues based on their best interest. The petitioner also cannot receive more than the petition requested.
What if I can't find my spouse to serve them?
If you have made diligent efforts to locate your spouse and cannot, the court may allow service by another method or by publication. Service by publication has extra requirements, including the appointment of an attorney ad litem for the absent spouse in many cases.
Can a default divorce be undone?
Sometimes. A spouse who did not answer may ask for a new trial, generally within 30 days after the judgment, and may have to show the failure to answer was not intentional and that they have a meritorious defense. Longer windows can apply when service was by publication or was defective.
Last reviewed November 13, 2026. General information only, not legal advice.