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Attorney DROD
Attorney DROD, Family Law Attorney
Category: Family Law
Satisfied Customers: 33
Experience:  Over 20 years experience in Family Law. Divorce, Child Support, Protective Orders, Enforcement of Orders, Child Protective Service, Power of Attorney, Custody/custody modification and more.
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Hello, I am emailing on behalf of my friend. His spouse

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I am emailing on behalf of my friend. His spouse filed a petition of divorce via waiver of citation on 2/28 in harris county. He filed an answer on 5/30. Harris county is set to dismiss the case tomorrow morning. He has tried to communicate with her so they can show up for uncontested dockets but she has yet to reply.

He has a copy of the final decree which she has signed. Is there anything he can do so that the process does not start over or even "prove up" the divorce without her presence?
Hello and thank you for using Just Answer. I am a Texas attorney with over 20 years experience in Family Law. You said it was his spouse who filed the divorce, is that correct? I take it you mean rather than have him served she sent him a waiver of service? And he filed an answer. Is either of them represented by an attorney?

Who prepared the Final Decree of Divorce?

I am going to give you an answer and if I make assumption which are incorrect, I will be online for a while so please ask follow up questions.

If the grounds for the divorce are "no fault" which would be stated in the petition and decree as "insupportability" only one person needs agree to the divorce. That being said, unless a person has what are called "live pleadings" meaning they are the petitioner in a divorce case they cannot go to court to "prove up" the divorce to finalize it. Since your friend filed an answer and not what is called a "counter-petition" it is likely the Judge will not allow him to testify to prove up the divorce to finalize the matter.

That being said, he should definitely show up to court tomorrow morning and explain the situation to the Judge and ask the Judge if he can prove up the divorce since his soon to be ex signed the Decree. Most likely the Judge will say "no". In that case, your friend should tell the Judge he needs additional time to contact his spouse and so he would like to reset the case. He should then file a counter petition. Which will be like a divorce petition but is called Original Counter-Petition for Divorce and in it he would refer to himself as the counter-petition and her as the counter-respondent. He must file the counter-petition with the Clerk and pay filing fees. He would need to send her or her attorney a file stamped copy of the counter petition and set a hearing 45 days in advance to comply with Texas Laws. He would send notice of the hearing to her or her attorney certified mail. Then on the day of the hearing he could show up with a Divorce Decree exactly like the one he has except he would be referred to as the Counter-Petition and she as the Counter-Respondent. Then whether she shows up or not will not matter as he will have live pleadings file for himself requesting the divorce and he will be able to finalize the divorce without her being present or signing the decree since if she does not show for the hearing he will obtain what is called a "default judgment" or automatic judgment in his favor.

If any of the facts I base my answers are incorrect, please send me follow up questions to clarify or correct my answers.

I am assuming that neither of them has an attorney.

The answers you receive on Just Answer state general legal principals and are not intended to substitute for the advice of an attorney you can meet face to face with who can explain things you in person in detail. If your friend ops to file a counter-petition he should seek help from an attorney to at least prepare the Petition as it can be somewhat complicated and rather confusing to properly identify the "Counter" parties.

If you are satisfied with my answer, I would very greatly appreciate it if you would give me a positive rate of a 3, 4 or 5.

And as I said I will be online for a while, so if you ask follow up questions I will answer as soon as I see you have posted.

If you are satisfied with my answer, I wish your friend all the best and hope all works out for him.

Thank you, Denise
Customer: replied 3 years ago.

this is very informative. One last question... What should he take to court or be prepared to show the judge?

The original and three copies of the signed Decree just in case the Judge says he will sign it. If the Judge agrees to finalize the Divorce, you friend should give the Judge the original to sign. If the Judge signs the original then your friend should take the unsigned copies to the clerk and ask for his three copies to be "conformed".

He should also take each document he has which pertains to the case, i.e. the petition, the waiver he was given the file stamped copy of his answer and any correspondence he may have pertaining to the divorce case. These are the documents attorneys keep in client files and the file is what they take with them to court.

Also blank paper and pen are helpful in case he needs to take notes on instructions the Judge may give him.

If you think of any additional questions, please ask, I will continue to answer until you feel your question has been answered. I want to make sure you are satisfied with your experience with Just Answer.
Customer: replied 3 years ago.

he only has the copy of the signed original decree. she has the original. so shall we say at minimum he should take the copy and ask for additional time to contact the petitioner and then proceed with the counter petition as you suggested?

Yes, he must have the original to present to the Judge for signature and entry. I copy will not do. So, he should do as you suggested, ask for more time to contact the petitioner and prepare, file and serve the counter-petition and then set a final hearing where he can present his own Decree.
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