What to do if my court date for an uncontested divorce is soon but my husband hasn’t returned the waiver and he has not been served yet?

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What to do if my court date for an uncontested divorce is soon but my husband hasn’t returned the waiver and he has not been served yet?

If the case is dismissed, what do I have to do to re-file?

Asked on November 8, 2012 under Family Law, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If your husband hasn't been served, or has not signed a waiver, or he has not filed an answer.... then you cannot get your divorce finalized at your next court date.  Once he is served, then he will have twenty-one days to file an answer before you can get the divorce finalized by default.  If your case is a relatively new case, then what you need to do is ask the court for a continuance to give you more time to get him served.  If your case has been pending for over a year, some courts will dismiss your case for "want of prosecution."  This means the court is penalizing you for letting your case become stagnant.  However, again, if you show up to court and show the court the efforts that you have made to get him served, they will usually give you more time to get the case moving again.  If you don't know where he is, you might want to have an attorney help you have him served "by publication."  This is where notice is via the newspaper-- you just have to jump extra hoops to get the court to approve this type of service.

If the court does dismiss your suit, then you will just file a new divorce petition-- just like the first one, except that a new cause number will be assigned to the first filing.  Considering that many counties charge around $250-300 for filing fees, it would be cheaper just to update the court on the status of your case and request a continuance so you don't have to pay a new filing fee.


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