Default Divorces With Children Require an Adequate Proveup

Default Divorces With Children Require an Adequate Proveup

Sometimes, when we file a petition for divorce, the other side does not respond. In those situations, we can obtain a divorce for our client by default. But requests made in a default divorce are not automatic. We have to go to court and present evidence to support it. If there isn’t enough evidence, the judge may not grant your requests – even in the event of a default. This is true of divorces involving children as well as those where only property division is an issue. We at Houston’s Boudreaux | Hunter & Associates, L.L.C., have substantial experience at default judgments and know how to prove them up correctly.

Our firm is anchored by our two partners, Shannon Boudreaux and Kevin Hunter. Ms. Boudreaux’s clients have given her a five-star rating on Avvo, a lawyer listing service. Mr. Hunter, a gifted oral advocate, competed in moot court competitions in law school and is now a moot court competition coach at his former law school.

What Exactly is a Proveup?

Many states allow couples to get divorced merely by submitting some paperwork. Texas is different. The courts want to make sure there is a just and right division of the community estate. When there are children involved, the courts want to make sure that any agreement is in the child’s best interest. To accomplish these goals, the courts require at least one of the spouses to come give testimony in court on these subjects before approving a divorce.

Are Default Divorces Different?

They are not. When a spouse fails to respond to a divorce petition, the filing spouse must still go to court to testify about the property division and provisions for the child. If that spouse does not provide the court with enough details or evidence, then the judge will not grant that spouse’s requests.  For example, the judge will grant a spouse a divorce, but will not grant that spouse as the sole managing conservator of the children if that spouse cannot overcome the presumption of joint managing conservators.

Does This Happen Often?

Unfortunately, it does. There is a human tendency, when the other spouse does not respond to the divorce, to put on perfunctory testimony. Time and time again, we see default cases reversed for insufficient evidence. The most recent example of such a reversal is B.K. v. T.K.

A Default Judgment is Set Aside

In B.K. v. T.K., the husband filed for divorce. The wife did not respond. The husband and his attorney went to court to obtain a default judgment.

The husband submitted minimal evidence about the community property. He testified that the proposed divorce decree listed and divided all the parties’ assets and liabilities and constituted a fair and just division of the community estate. But the husband provided no evidence of the values of the assets and the amount of the debts. Accordingly, the court of appeals held that the trial court didn’t have enough evidence to make a decision about whether the division of the community estate was just and right.

The evidence about the parties’ child also lacked detail. The husband gave the child’s name and age, testified that she was living with him, requested that he have sole custody and that the Standard Possession Order was in the child’s best interest. The court of appeals characterized this evidence as “wholly conclusory.” It held that the trial court did not have enough evidence before it to make any decisions about the child.

There was another wrinkle. The husband asked for only $100 per month in child support from the wife. The trial court approved that amount even though under the child support guidelines, the amount should have been more like $600 per month. The trial court did not explain why it was in the child’s best interest to award less than guideline child support.

Default Judgments Require Evidence

A “proveup” is actually considered to be a trial, even though one of the spouses doesn’t show up. For a court to render a judgment, the court must have enough evidence before it to decide the issues presented. Experienced family law attorneys such as the ones at Boudreaux | Hunter & Associates, L.L.C., are well aware of the requirement that a judgment must be supported by evidence. This is as true of default cases as it is for hard fought cases when both parties attend court.

Should you or a loved one need experienced, competent family law attorneys to help with child custody issues in a divorce, please contact us at (713) 333-4430 or visit our contact page.