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What happens if you miss your trial in a divorce case?

What happens if you miss your trial in a divorce case? Can you tell the court you did not get notice? Will you get a new trial? What if you don’t have a lawyer?

These are some of the questions that clients have when they miss a court date. Most people outside the legal community do not understand how a family cases moves through the system, or how hearings are set. That is why pro se litigants (those without lawyers) almost always lose against experienced family lawyers. It’s their first rodeo so to speak.

Don’t let that happen to you. Never represent yourself in a family case. Let’s look at the law regarding trial settings in a family case, and what happens if you fail to appear and then try to file a motion for new trial to overturn to result. Let’s assume you are claiming that you did not receive notice of the trial setting.

Notice of trial setting ordinarily does not appear in the transcript and need not affirmatively appear in the record. Bruneio v. Bruneio, 890 S.W.2d 150, 155 (Tex. App.—Corpus Christi 1994, no writ). Rather, the law presumes that a trial court will hear a case only after proper notice to the parties. Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex. App.—Dallas 1993, writ dism’d); Bruneio, 890 S.W.2d at 155.

A recitation of due notice of the trial setting in the judgment constitutes some evidence that proper notice was given. Wilson v. Indus. Leasing Corp., 689 S.W.2d 496, 497 (Tex. App.—Houston [1st Dist.] 1985, no writ). To rebut this presumption, an appellant has the burden to affirmatively show a lack of notice by affidavit or other competent evidence. Hanners, 860 S.W.2d at 908; Jones v. Tex. Dept. of Pub. Safety, 803 S.W.2d 760, 761 (Tex. App.—Houston [14th Dist.] 1991, no writ). This burden is not discharged by mere allegations in a motion for new trial, unsupported by affidavits or other competent evidence, that proper notice was not received. Hanners, 860 S.W.2d at 908. If a judgment is effectively rebutted by other evidence in the record, the presumption of proper notice is no longer taken to be true. P. Bosco & Sons Contracting Corp. v. Conley, Lott, Nichols Mach. Co., 629 S.W.2d 142, 143 (Tex. App.—Dallas 1982, writ ref’d n.r.e.); Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.] 1997, pet. denied).

What these cases tell us is that it may not be enough to later claim you did not receive notice. There is a presumption that all hearings are the result of properly notified parties who are prepared for the hearing.

Don’t let this happen to you. Call our experienced family law team today so we can help.

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