My divorce was recently finalized. My wife was served and defaulted.

The thirty day thing is technically true, but she'd have to have a really good reason to be able to get anywhere doing that. She'd need to show that the reason she didn't participate in the case was understandable and not her fault (like maybe she ended up in the hospital fighting for her life for a couple of months and when she got out, it was a done deal, or she wasn't actually personally served and didn't even know about the case until the decree had been signed). She'd also have to show that she had some good reason for thinking the result would be different if she got a do-over--like that your son has extensive medical issues that she needs extra support from you to pay or that you have domestic violence issues that the court didn't get to hear about and might justify supervised visitation. Absent that kind of thing, I don't see her getting anywhere with a motion for new trial, especially since it sounds like you ended up with the default provisions on support and custody. Plus, unless she has an attorney, just the procedural aspects of trying to file a motion for new trial and get it heard by the court are more than a little tricky, and she'd probably screw it up to the point she wouldn't even get a hearing.

Unfortunately beside the 30 days rule which applies to a motion for new trial and perfecting an appeal (can also be extended if MNT was filed), than she can also seek something called a "restricted appeal" or a "bill of review". This only applies if she has been defaulted either because she was never served or after she answered she failed to appear at the hearing for specific reasons provided by case law and the law. Further, she can seek a modification of either child custody or child support. However, the burden for both is extermely high and difficult (material and substantial change in circumstances for child support modificiation within 3 years and best interest and change in circumstances provided under the family code for child custody modification for both within 1 year or beyond 1 year of last court order). Question still remains, why was she defaulted. it sounds almost like she was not made aware by service of citation or any other means since you are saying she is going to be very upset when she finds out. Depending on your action that may or may not have hindered her receiving notice and representing herself she may resort to the bill of review (an equitable request for appeal rather than codified procedure). She can essentially file a bill of review after 180 days of the judgment. within 180 days but beyond 30 days (or the extended time for perfecting appeal) she can still file a restricted appeal which is based on default judgmnet. Consult your attorney or if you didn't have an attorney, consult an attorney who is knowledgeable of family law appeals and post judgment actions (rules of appellate procedure and case law standard differ slightly from regular appeals). Also, you can consult one of the many great pro bono clinics and organization here in Houston. Local law schools and local bar associations provide great legal service through attorneys who volunteer their time and efforts for free or reduce price.

She can file a motion for new trial if it is before 30 days. Otherwise, depending on the circumstances she can file a bill of review. If she doesn't give the child to you then you need to seek an enforcement. Respectfully, Eric Dick, LL.M. 832-207-2007 - Office 713-498-7969 - Cellular [email protected] www.dicklawfirm.com LEGAL DISCLAIMER: Mr. Dick is licensed to practice law in Texas and his office located in Harris County. Mr. Dick primarily practices family law in Harris County and nearby counties and offers free consultations. Mr. Dick is ethically required to state that the response herein is not legal advice and does not create an attorney client relationship. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Often times the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Dick strongly advises the questioner to confer with an attorney in his or her state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.