Should I file an answer or counter-petition to my spouse’s petition for divorce in Texas?

If you are served with an Original Petition for Divorce in Texas, you are considered the Respondent spouse. The Petition is the document your spouse has filed with the court to initiate divorce proceedings. The Petition lets the court know the factual information regarding your marriage and what they are requesting be granted. You might not agree with everything in the Petition that has been filed by your spouse, and that’s okay! You have an opportunity to respond for this very reason.

Note: in an uncontested or agreed divorce, a Respondent does not have to file a Counter-Petition if they are in agreement with the Petitioner.

After being served with the Original Petition, the Respondent has three options:

  1. File an Answer
  2. File an Answer and Counter-Petition
  3. Do nothing: This the riskiest option. If you don’t participate, a default judgment can be entered against you, in which you will have no say with respect to decisions regarding property, money, custody, child support payments, and so on.

Why should I file an answer?

An answer is your opportunity to agree or disagree with any of the information your spouse has put in the petition. It also lets the court know that you are going to be an active participant in your divorce case. If you do not answer, you run the risk of not being notified of what’s happening with your case and thus not having a voice during the process.

Filing an Answer, or Answer and Counter-Petition

An Answer is filed to demonstrate to the court that you are going to want to have your say in the proceedings. A Counter-Petition is filed alongside an Answer to allow you to tell the court what orders you (the Respondent) would like to be made in the divorce. Filing an Answer is free, whereas filing a Counter-Petition comes with a fee.

An Answer (with or without Counter-Petition) must be filed within a specific time frame. Take the day you were served, count out 20 more days on the calendar after that date, and then go to the next Monday after that. You must file your answer by 10am on this Monday; if the date falls on a day the courts are closed, your deadline is moved to the next day the courts are open. You must also provide a file-stamped copy of your Answer, and Counter-Petition if applicable, to the other party. 

If the court has signed a Protective Order in your case, meaning you cannot contact the other party, please obtain legal advice as to how to proceed without violating the order. 

What if I miss the filing deadline?

If you missed your filing deadline, and wish to file an answer, you may be permitted by the court to do so as long as the divorce has not been finished. You can find out if your divorce has been finalized by calling the court clerk’s office in the county where the divorce was filed, and asking if a Final Decree of Divorce was signed by the judge in your case. 

If the Respondent spouse is on active military duty, they are protected by the Servicemembers Civil Relief Act (SCRA). This protects them from default judgments being entered against them for the length of time they are on active duty, and also allows for the hearing to be delayed for up to 60 days after their return from duty.

What happens if I don’t file an answer?

If you choose not to file an answer, especially in a case where you don’t agree with everything included in the petition for divorce filed by your spouse, you are considered to be in default. As such, the court can enter a default judgment and make orders based on the Original Petition without your input. This means the court and your spouse can decide how all of your marital assets and debts are divided, how much parenting time you receive, how much support you will have to pay (or receive) and more, all without your input. By not filing an answer, you are putting your future in your spouse’s hands.

What if we have a pre- or post-nuptial agreement?

Even if you have pre- or post-nuptial agreement, if the Petitioner does not provide the court with a copy (for instance, if it is unfavorable for the Petitioner), then the court is likely to enter the default orders that have been requested by the Petitioner because they have no knowledge of the agreement. The Petitioner would still need to prove that the orders requested are equitable, but if there is a pre- or post-nuptial agreement the court isn’t aware of, it can’t be taken into consideration.

If the Petitioner or you (as the Respondent) provides the court with the pre- or post-nuptial agreement, then they could use that as a guide to splitting things up, so long as that agreement is found to be valid.

The good news?

The good news is that an answer or counter-petition in Texas is not a difficult process  (your spouse has already done much of the leg work by filing the Petition) and it gives you (the Respondent) the opportunity to tell the court what orders you want in the divorce. Filing an answer itself does not lock you into agreeing to any final terms of your divorce. 

A note for same-sex spouses

If you are a member of the LGBTQ+ community, please note that the Texas Family Code does not have a provision, nor corresponding court forms, for divorces involving same-sex couples with children. Same-sex couples with children may attempt to use the Set B forms (labeled as for “couples with minor children”). Depending on your circumstances, the court may either allow you to continue with that set of forms or reject the use of those forms in your particular case. Please seek legal advice prior to filing your divorce if you are part of a same-sex couple.

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